United States v. Montgomery ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 9, 2006
Charles R. Fulbruge III
Clerk
No. 04-30565
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALEXIEUS MONTGOMERY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:04-CR-10001-1
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Before REAVLEY, JOLLY and OWEN, Circuit Judges.
PER CURIAM:*
Alexieus Montgomery appeals the sentence imposed upon his
guilty-plea conviction for assault with a deadly weapon. See
18 U.S.C. § 113(a)(3). Montgomery argues (1) that the district
court’s factual finding that Montgomery’s offense involved “more
than minimal planning” was clearly erroneous, (2) that the
district court committed Blakely** error in increasing his
offense level pursuant to U.S.S.G. § 2A2.2 for “more than minimal
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
**
Blakely v. Washington, 542 U.S. 296 (2004).
No. 04-30565
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planning,” and (3) that the career-offender enhancement of
Montgomery’s sentence was unconstitutional under Apprendi*** and
Blakely.
Montgomery and his three cell mates were members of the
Black Gangster Disciples (BGD). Montgomery and two of his cell
mates fashioned weapons from razors provided to them for shaving.
Montgomery then obtained permission from a BGD board member to
attack Lucius Allen, the fourth cell mate. Montgomery and the
two other attackers admitted that they attacked Allen with
weapons made from the razors. These factual findings were
sufficient to support the two-level adjustment pursuant to
U.S.S.G. § 2A2.2(b)(1) for “more than minimal planning.” See
U.S.S.G. § 2A2.2, comment. (n.3). The district court did not
clearly err in applying U.S.S.G. § 2A2.2(b)(1). See United
States v. Villanueva, 408 F.3d 193, 203 n.9 (5th Cir.), cert.
denied, 126 S. Ct. 268 (2005).
For the first time on appeal, Montgomery asserts a Blakely
challenge to the two-level adjustment for “more than minimal
planning.” Although the first two prongs of the plain-error
standard are satisfied, Montgomery cannot show that the error
affected his substantial rights. See United States v. Olano,
507 U.S. 725, 732-37 (1993). “The judge imposed a sentence in
the middle of the properly determined Guidelines range, and there
is no indication in the record from the judge’s remarks or
***
Apprendi v. New Jersey, 530 U.S. 466 (2000).
No. 04-30565
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otherwise that the judge would have reached a different
conclusion in an advisory regime.” United States v. Infante,
404 F.3d 376, 395 (5th Cir. 2005). Montgomery is not entitled to
resentencing under Blakely.
Finally, Montgomery’s Blakely challenge to the district
court’s use of the career-offender guideline has been rejected by
this court. See United States v. Guevara, 408 F.3d 252, 261 (5th
Cir. 2005), cert. denied, 126 S. Ct. 1080 (2006).
AFFIRMED.