USA v. Nathaniel Montgomery

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: CHAGARES, VANASKIE and KRAUSE, Circuit Judges. Total Pages: 5. DLD-075

Case: 16-3738

Document: 003112498986

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DLD-075

Date Filed: 12/29/2016

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 16-3738
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UNITED STATES OF AMERICA
v.
NATHANIEL MONTGOMERY, a/k/a Shu Shu
Nathaniel Montgomery,
Appellant
__________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Crim. No. 02-cr-00172-20)
District Judge: Stewart Dalzell
__________________________________
Submitted for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
December 15, 2016
Before: CHAGARES, VANASKIE and KRAUSE, Circuit Judges
(Opinion filed December 29, 2016)
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OPINION
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* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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PER CURIAM
Nathaniel Montgomery appeals from an order of the District Court denying his
motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2). For the reasons that
follow, we will summarily affirm.
Montgomery was convicted following a jury trial of conspiring to distribute
powder cocaine and crack cocaine. “At sentencing, the [District] Court determined that
he was responsible for distributing more than 1.5 kilograms of crack cocaine and,
separately, more than 150 kilograms of powder cocaine.” United States v. Montgomery,
398 F. App’x 843, 844 (3d Cir. 2010). Following a Booker remand,1 Montgomery was
resentenced in 2006 to a term of imprisonment of 280 months. We affirmed this sentence
on direct appeal, see United States v. Montgomery, 2007 WL 3122255 (3d Cir. Oct. 26,
2007).
In 2011, Montgomery filed a motion for reduction of sentence pursuant to 18
U.S.C. § 3582(c)(2) and Sentencing Guidelines Amendment 750, which lowered the base
offense level for crack cocaine. The District Court concluded that Montgomery was not
entitled to a sentence reduction and denied the § 3582(c)(2) motion, reasoning that the
established quantity of 150 kilograms of powder cocaine continued to result in a base
offense level of 38. We affirmed on appeal, see United States v. Montgomery, 473 F.
App’x 173, 174-75 (3d Cir. 2012).
Most recently, in an order entered on February 23, 2015, the District Court, by
agreement of the parties, reduced Montgomery’s sentence pursuant to 18 U.S.C. §
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United States v. Booker, 543 U.S. 220 (2005).
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3582(c)(2) and Amendment 782 to a term of imprisonment of 235 months, see Docket
Entry No. 2641.
At issue in this appeal, on July 11, 2016, Montgomery filed a § 3582(c)(2) motion,
seeking a reduction under Amendment 759. Montgomery also argued that the
Government withheld an exculpatory statement made by a cooperating witness. The
Government responded to Montgomery’s § 3582(c)(2) motion, arguing that Amendment
759 implemented Amendment 750, and that relief was not warranted under those
amendments, but that a reduction under Amendment 782 was warranted. The
Government noted that, in this Amendment, the Sentencing Commission lowered the
base offense level for all drug offenses, and, under the new U.S.S.G. § 2D1.1(c)(2), at
least 150 kilograms of cocaine but less than 450 kilograms of cocaine carries a base
offense level of 36, rather than 38. This would have the effect of lowering
Montgomery’s Guidelines imprisonment range to 235-293 months.
In an order entered on September 13, 2016, the District Court denied
Montgomery’s motion for reduction of sentence, noting that his sentence had already
been reduced by agreement of the parties to 235 months’ imprisonment.
Montgomery appeals. We have jurisdiction under 28 U.S.C. § 1291. Our Clerk
advised Montgomery that his appeal was subject to summary action under Third Cir.
LAR 27.4 and I.O.P. 10.6. He was invited to submit argument in writing, but he has not
done so.
We will summarily affirm the order of the District Court because no substantial
question is presented by this appeal, Third Circuit LAR 27.4 and I.O.P. 10.6. The
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District Court’s ultimate decision to deny a § 3582(c)(2) motion is reviewed for an abuse
of discretion, but we review de novo the District Court’s interpretation of the Guidelines.
See United States v. Mateo, 560 F.3d 152, 154 (3d Cir. 2009). In 2010, the United States
Sentencing Commission promulgated Amendment 750 to the Guidelines that, effective
November 1, 2011, “reduced the base offense levels for crack cocaine offenses by
increasing the weight of drugs associated with each offense level.” See United States v.
Ware, 694 F.3d 527, 529-30 (3d Cir. 2012). Simultaneously, the Commission also
promulgated Amendment 759, “adding the relevant portions of Amendment 750 to the
list of amendments that may trigger a retroactive sentence reduction,” and modifying the
commentary to its policy statement to specify that “applicable guideline range” is to be
calculated prior to any variance or departure. Id. at 531. Amendment 759 thus provided
a new and more restrictive definition of “applicable guideline range,” see United States v.
Flemming, 723 F.3d 407, 413 (3d Cir. 2013).
Montgomery was not entitled to a sentence reduction under Amendments 750 and
759, and thus District Court properly denied his most recent § 3582(c)(2) motion. See
Montgomery, 473 F. App’x at 174 (“[O]ur observation from Montgomery’s prior appeal
retains its full force: the cocaine exposure alone would suffice to place Montgomery at a
base offense level of 38.”). Moreover, section 3582(c)(2) authorizes “only a limited
adjustment to an otherwise final sentence and not a plenary resentencing proceeding.”
Dillon v. United States, 560 U.S. 817, 826 (2010). In addition, as noted by the District

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Court, Montgomery previously received a reduction in his sentence to 235 months’
imprisonment.2
For the foregoing reasons, we will summarily affirm the order of the District Court
denying Montgomery’s most recent § 3582(c)(2) motion.

In a reply to the Government’s response, which was mailed from prison two days after
the District Court issued its decision (and filed on the docket on September 23, 2016), see
Docket Entry No. 2771, Montgomery reiterated his original arguments, which do not
persuasively establish that he is entitled to a reduction under Amendment 759. But he
also asked the District Court, for the first time, to award him a reduction in sentence
under Amendment 794. Amendment 794, which went into effect on November 1, 2015,
introduced in the commentary of § 3B1.2 a list of non-exhaustive factors that a
sentencing court should consider in determining whether to apply a mitigating role
adjustment, see United States v. Quintero-Leyva, 823 F.3d 519, 522 (9th Cir. 2016).
Because this request was received after the District Court’s final order issued, the Court’s
decision and our affirmance is without prejudice to any relief Montgomery may be due
under Amendment 794. We express no view whatever on that subject.
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