United States v. Russell Montague ( 2020 )

Case: 20-60058 Document: 00515584788 Page: 1 Date Filed: 09/30/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
September 30, 2020
No. 20-60058
Lyle W. Cayce
consolidated with Clerk
No. 20-60061
Summary Calendar
United States of America,
Plaintiff—Appellee,
versus
Russell Lawayne Montague,
Defendant—Appellant.
Appeals from the United States District Court
for the Southern District of Mississippi
USDC No. 3:04-CR-26-1
USDC No. 3:19-CR-231-1
Before Jones, Barksdale, and Stewart, Circuit Judges.
Per Curiam:*
In these two consolidated appeals, Russell Lawayne Montague
challenges: the four consecutive, within-Sentencing Guidelines policy-
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-60058 Document: 00515584788 Page: 2 Date Filed: 09/30/2020
No. 20-60058
c/w No. 20-60061
statement sentences of 24-months’ imprisonment (a total of 96 months)
imposed upon revocation of his supervised release, which was part of his
sentence in 2005 for stealing a firearm moved in interstate commerce,
receiving an unregistered firearm, being a felon in possession of a firearm,
and using a firearm during a drug crime, in violation of 18 U.S.C. § 924(1),
26 U.S.C. § 5861(d), 18 U.S.C. § 922(g)(1), and 18 U.S.C. § 924(c)(1); and
the consecutive, within-Guidelines policy-statement sentence of 18-months’
imprisonment imposed upon revocation of his supervised release, which was
part of his sentence in 2011 for escape from custody, in violation of 18 U.S.C.
§ 751(a). He maintains: the district court erroneously found he violated the
conditions of his supervised release (Violation 1 for violating an order of
protection and Violation 2 for possessing a controlled substance; he does not
contest two other violations); and his resultant 114-month sentence is
substantively unreasonable. His claims fail.
The decision to revoke supervised release is reviewed for abuse of
discretion. United States v. McCormick, 54 F.3d 214, 219 (5th Cir. 1995). A
court may revoke supervised release if it “finds by a preponderance of the
evidence that the defendant violated a condition of [the] supervised release”.
18 U.S.C. § 3583(e)(3). The evidence, including testimony by Montague and
his probation officer, demonstrates by a preponderance of evidence
Montague committed the crimes underlying Violations 1 and 2. Accordingly,
the district court did not abuse its discretion in revoking his terms of
supervised release on those grounds. See McCormick, 54 F.3d at 219.
Revocation sentences are reviewed under the plainly-unreasonable
standard of review. United States v. Miller, 634 F.3d 841, 843 (5th Cir. 2011).
The substantive reasonableness of a sentence imposed on revocation is
subject to the same standards used to review whether an initial sentence is
substantively reasonable. See United States v. Warren, 720 F.3d 321, 332 (5th
Cir. 2013) (citing cases addressing an initial sentence in reviewing a
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Case: 20-60058 Document: 00515584788 Page: 3 Date Filed: 09/30/2020
No. 20-60058
c/w No. 20-60061
revocation sentence). “A sentence is substantively unreasonable if it (1) does
not account for a factor that should have received significant weight, (2) gives
significant weight to an irrelevant or improper factor, or (3) represents a clear
error of judgment in balancing the sentencing factors.” Id. (internal
quotation marks and citation omitted). A presumption of reasonableness
applies to within-Guidelines policy-statement revocation sentences. See
United States v. Lopez-Velasquez, 526 F.3d 804, 809 (5th Cir. 2008).
The revocation sentences are within the applicable Guidelines policy-
statement ranges of imprisonment and are therefore presumptively
reasonable. Id. at 809. The court considered Montague’s claims in favor of
a sentence below the applicable Guidelines policy-statement ranges. The
revocation sentences for both cases were based on the court’s consideration
of the Guidelines policy-statement ranges, Montague’s prior criminal
history, and the violation conduct. His challenge to the court’s weighing of
the statutory sentencing factors does not overcome the presumption of
reasonableness. Id.AFFIRMED.
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