United States v. Montague

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5027
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LATRON MONTAGUE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Louise W. Flanagan,
Chief District Judge. (CR-04-116)
Submitted: October 31, 2006 Decided: November 29, 2006
Before WILLIAMS and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Diana H. Cap, Research and
Writing Attorney, Raleigh, North Carolina, for Appellant. Frank D.
Whitney, United States Attorney, Anne M. Hayes, Christine Witcover
Dean, Assistant United States Attorneys, Raleigh, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Latron Montague pled guilty to one count of possession of
a firearm and ammunition by a felon, in violation of 18 U.S.C.
§§ 922(g)(1), 924 (2000). Montague was sentenced to thirty-seven
months’ imprisonment. On appeal, Montague contends the district
court abused its discretion by denying his motion to withdraw his
guilty plea. We affirm.
A defendant may withdraw a guilty plea prior to
sentencing if he “can show a fair and just reason for requesting
the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). In determining
whether a defendant should be allowed to withdraw his guilty plea,
a district court should consider:
(1) whether the defendant has offered credible evidence
that his plea was not knowing or not voluntary,
(2) whether the defendant has credibly asserted his legal
innocence, (3) whether there has been a delay between the
entering of the plea and the filing of the motion,
(4) whether defendant has had close assistance of
competent counsel, (5) whether withdrawal will cause
prejudice to the Government, and (6) whether it will
inconvenience the court and waste judicial resources.
United States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991). We
review a district court’s denial of a motion to withdraw a guilty
plea for abuse of discretion. United States v. Ubakanma, 215 F.3d
421, 424 (4th Cir. 2000).
The relevant factor at issue in this appeal is whether
Montague has credibly asserted his legal innocence. Montague
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argues that North Carolina v. Allen, 615 S.E.2d 256, 265 (N.C.
2005) (holding, after Blakely v. Washington, 542 U.S. 296 (2004),
statutory maximum is the maximum a defendant can face in light of
his criminal history and the facts found by a jury or admitted by
defendant), establishes his legal innocence. Montague’s argument
is squarely foreclosed by this court’s decision in United States v.
Harp, 406 F.3d 242, 246-47 (4th Cir.), cert. denied, 126 S. Ct. 297(2005), which holds that United States v. Jones, 195 F.3d 205 (4th
Cir. 1999), is still viable after Blakely and United States v.
Booker, 543 U.S. 220 (2005), and reaffirms that a prior North
Carolina conviction satisfies § 922(g)(1) if any defendant charged
with that crime could receive a sentence in excess of one year.
Thus, because it is undisputed that a sentence of over twelve
months could be imposed on a defendant convicted of felony breaking
and entering a motor vehicle in North Carolina, Montague’s prior
conviction was properly considered a predicate felony under
§ 922(g)(1). Therefore, we conclude the district court did not
abuse its discretion in denying Montague’s motion to withdraw his
guilty plea.
Accordingly, we affirm Montague’s conviction. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argument would not aid the decisional process.
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AFFIRMED
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