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United States of America v. Robert Montgomery

December 17, 2012

UNITED STATES OF AMERICA
PLAINTIFF - APPELLEE
v.
ROBERT MONTGOMERY
DEFENDANT - APPELLANT



Appeal from United States District Court for the Western District of Missouri - Kansas City

The opinion of the court was delivered by: Shepherd, Circuit Judge.

Submitted: September 21, 2012

Before BYE, GRUENDER, and SHEPHERD, Circuit Judges.

Robert Montgomery was charged with being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Montgomery was convicted after a jury trial and was sentenced to 188 months imprisonment. Montgomery appeals his conviction, arguing that the district court*fn1 erred in denying his motion for acquittal. Montgomery also appeals his sentence, arguing that his prior Missouri conviction for second-degree domestic assault was not a predicate offense under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), and that his sentence was both substantively unreasonable under 18 U.S.C. § 3553(a) and grossly disproportionate to his crime in violation of the Eighth Amendment.*fn2 We affirm.

I.

Early in the morning of June 21, 2010, officers from the Kansas City, Missouri, Police Department were dispatched to a report of shots fired. When Sergeant Gregory Williams arrived at the scene, he observed a red Dodge automobile riddled with bullet holes exiting an apartment complex. The car was driven by Montgomery, who was the sole occupant of the vehicle. Sergeant Williams began to follow the red Dodge, which soon drove away in excess of the speed limit and ran several stop signs.

After a few blocks, the red Dodge crashed into a parked car, and Montgomery fled on foot. Sergeant Williams pursued, and Montgomery was taken into custody about 100 yards from the crash site. After apprehending Montgomery, Sergeant Williams returned to the crash scene to check the car for any injured persons. Finding none, he conducted a second scan of the car with his flashlight and observed a Glock 17 9-mm pistol on the front seat of the vehicle. The gun was not loaded and did not contain a magazine. Montgomery was arrested after a computer check showed that he was a convicted felon.

Montgomery subsequently was charged with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Montgomery pled not guilty and represented himself with stand-by counsel at trial. At the close of the Government's case in chief, Montgomery orally moved for a judgment of acquittal, which the district court denied. At the conclusion of trial, the jury convicted Montgomery.

The Presentence Investigation Report ("PSR") classified Montgomery as an armed career criminal based on three prior convictions for violent felonies or serious drug offenses, all in Missouri: second-degree assault in 1993, sale of a controlled substance in 1998, and second-degree domestic assault in 2007. This classification subjected Montgomery to a mandatory minimum sentence of 180 months under the ACCA. The PSR also applied an armed career criminal enhancement, United States Sentencing Commission, Guidelines Manual, §4B1.4 (Nov. 2012), raising

Montgomery's offense level from 28 to 33. Montgomery's resulting Guideline range was 188 to 235 months. Montgomery filed pro se objections to several portions of the PSR, including the paragraph discussing his second-degree domestic assault conviction.

During sentencing, Montgomery elected to be represented by his stand-by counsel. The Government requested an upward variance to a sentence of 328 months. Montgomery's counsel argued he should not be subject to the armed career criminal enhancement or the ACCA mandatory minimum sentence because his second-degree domestic assault conviction was not necessarily a violent felony. Alternatively, Montgomery requested the mandatory minimum sentence of 180 months. The district court concluded that the PSR correctly calculated the Guideline range and imposed a sentence of 188 months, at the bottom of the Guideline range. Montgomery now appeals his conviction and sentence.

II.

Montgomery challenges his conviction on the grounds of insufficient evidence. "We review challenges to the sufficiency of the evidence de novo, resolving all evidentiary conflicts in favor of, and accepting all reasonable inferences that support, the jury's verdict." United States v. Tucker, 689 F.3d 914, 918 (8th Cir. 2012). We will affirm the verdict "if any rational jury could have found the defendant guilty beyond a reasonable doubt." United States v. Ojeda-Estrada, 577 F.3d 871, 874 (8th Cir. 2009), cert. denied, 130 S. Ct. 1112 (2010).

Possession of a firearm by a convicted felon requires that the Government prove (1) previous conviction of a crime punishable by a term of imprisonment exceeding one year, (2) knowing possession of a firearm, and (3) the firearm was in or affecting interstate commerce. 18 U.S.C. ยง 922(g)(1). Montgomery challenges only the second element, arguing that because there was no witness to his possession of the firearm and no ...


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