US v. Montrell Tucker

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:14-cr-00214-D-1. Copies to all parties and the district court/agency. [999737566]. [15-4169]

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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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).
a 78-month sentence.

He received

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

abuse-of-discretion standard.”
38, 41 (2007).

sentence

“under

a

deferential

Gall v. United States, 552 U.S.

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
(2012)

factors,

sentence.
procedural

and

sufficiently

Id. at 49-51.
error,”

reasonableness,

we

“taking

18 U.S.C. § 3553(a)

explained

the

selected

If a sentence is free of “significant
then
into

review
account
2

it
the

for

substantive

totality

of

the

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circumstances.”

Id. at 51.

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“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).
can

only

be

rebutted

by

a

showing

Such a presumption

that

the

sentence

unreasonable when measured against the § 3553(a) factors.
Tucker
because

maintains

his

prior

that

North

and

entering

violence”

for

purposes

of

which

the

entitled

to

conviction

for

constitutes

a

USSG

Supreme

§ 2K2.1(a)(4)(A)
Court

held

Id.

resentencing

longer

no

in

is

Carolina

breaking

Johnson,

he

is

that

attempted
“crime

in

light

the

of
of

residual

clause of the Armed Career Criminal Act—the final clause of 18
U.S.C.

§ 924(e)(2)(B)(ii)

135 S. Ct. at

(2012)—is

unconstitutionally

vague.

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,
3

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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.
(4th

Cir.

Although United States v. Simmons, 649 F.3d 237

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

presumptive

range

judges

not

may

requisite

judges

even

impose

findings),

if

to

mitigated

sentences

cert.

impose

in

denied,

range

sentences

within

applies,

whereas

aggravated
134

S.

Ct.

range

absent

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.
4

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See

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N.C.

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Gen.

Stat.

§

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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)

Accordingly,

we

affirm

the

to

fashion

judgment.

Tucker’s
We

dispense

sentence.
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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