United States v. Montrell Tucker

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4169
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MONTRELL RAYNOR TUCKER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever, III,
Chief District Judge. (5:14-cr-00214-D-1)
Submitted: November 30, 2015 Decided: January 19, 2016
Before WILKINSON, KING, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Thomas G. Walker, United States Attorney, Jennifer
P. May-Parker, Kristine L. Fritz, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Montrell Raynor Tucker pled guilty without a plea agreement
to possession of a firearm and ammunition by a convicted felon,
in violation of 18 U.S.C. §§ 922(g)(1), 924 (2012). He received
a 78-month sentence. His sole claim on appeal is that the
sentencing court erred in applying U.S. Sentencing Guidelines
Manual § 2K2.1(a)(4)(A) (2014) (directing a base offense level
of 20 if the defendant committed the offense after sustaining a
felony conviction for either a “crime of violence” or controlled
substance offense), in light of the Supreme Court’s subsequent
decision in Johnson v. United States, 135 S. Ct. 2551 (2015).
We affirm.
We review a defendant’s sentence “under a deferential
abuse-of-discretion standard.” Gall v. United States, 552 U.S.
38, 41 (2007). Under this standard, a sentence is reviewed for
both procedural and substantive reasonableness. Id. at 51. In
determining procedural reasonableness, we consider whether the
district court properly calculated the defendant’s advisory
Guidelines range, gave the parties an opportunity to argue for
an appropriate sentence, considered the 18 U.S.C. § 3553(a)
(2012) factors, and sufficiently explained the selected
sentence. Id. at 49-51. If a sentence is free of “significant
procedural error,” we then review it for substantive
reasonableness, “taking into account the totality of the
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circumstances.” Id. at 51. “Any sentence that is within or
below a properly calculated Guidelines range is presumptively
reasonable.” United States v. Louthian, 756 F.3d 295, 306 (4th
Cir.), cert. denied, 135 S. Ct. 421 (2014). Such a presumption
can only be rebutted by a showing that the sentence is
unreasonable when measured against the § 3553(a) factors. Id.
Tucker maintains that he is entitled to resentencing
because his prior North Carolina conviction for attempted
breaking and entering no longer constitutes a “crime of
violence” for purposes of USSG § 2K2.1(a)(4)(A) in light of
Johnson, in which the Supreme Court held that the residual
clause of the Armed Career Criminal Act—the final clause of 18
U.S.C. § 924(e)(2)(B)(ii) (2012)—is unconstitutionally vague.
135 S. Ct. at 2557 (“[T]he indeterminacy of the wide-ranging
inquiry required by the residual clause both denies fair notice
to defendants and invites arbitrary enforcement by judges.
Increasing a defendant’s sentence under the clause denies due
process of law.”).
Because Tucker did not object below to the application of
USSG § 2K2.1(a)(4)(A), his claim that the district court
improperly calculated his Guidelines range is reviewed for plain
error, a standard which requires Tucker to establish (1) an
error, (2) that is plain, and that not only (3) affects his
substantial rights, but also (4) seriously affects the fairness,
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integrity, or public reputation of judicial proceedings. United
States v. Brack, 651 F.3d 388, 392 (4th Cir. 2011).
Assuming, without deciding, that Tucker’s prior conviction
for attempted breaking and entering no longer qualifies as a
crime of violence in light of Johnson, our review of the record
confirms that Tucker has a prior 2005 North Carolina conviction
for selling cocaine, which in any event serves as a qualifying
offense under the disputed Guideline. With respect to this
prior conviction, a Class G felony, the state court sentenced
Tucker in the mitigating sentencing range to 8 to 10 months’
imprisonment. Although United States v. Simmons, 649 F.3d 237(4th Cir. 2011) (en banc) prohibits a district court from
considering the aggravated sentencing range unless that range
applied in the defendant’s case, we have held that a district
court should consider the presumptive range of a defendant who
was sentenced in the mitigated range. United States v. Kerr,
737 F.3d 33, 38-39 & n.8 (4th Cir. 2013) (noting that North
Carolina law allows judges to impose sentences within
presumptive range even if mitigated range applies, whereas
judges may not impose sentences in aggravated range absent
requisite findings), cert. denied, 134 S. Ct. 1773 (2014).
Here, even though Tucker was sentenced in the mitigated range,
his presumptive sentencing range for the drug offense allowed
for a maximum sentence of more than 12 months’ imprisonment.
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See N.C. Gen. Stat. § 15A-1340.17(c) (2013) (providing
presumptive sentence of 10 to 13 months for defendant convicted
of Class G felony with prior Record Level I).
Thus, the district court did not plainly err in applying
USSG § 2K2.1(a)(4)(A) to fashion Tucker’s sentence.
Accordingly, we affirm the judgment. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would
not aid the decisional process.
AFFIRMED
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