United States v. Montgomery

• Decision Date: 10 September 2020
• Docket Number: No. 19-30469,19-30469
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alfred MONTGOMERY, III, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

974 F.3d 587

UNITED STATES of America, Plaintiff-Appellee,

v.Alfred MONTGOMERY, III, Defendant-Appellant.

No. 19-30469

United States Court of Appeals, Fifth Circuit.

FILED September 10, 2020

Brittany L. Reed, Kevin G. Boitmann, Assistant U.S. Attorney, Diane Hollenshead Copes, Esq., Assistant U.S. Attorney, Jeffrey Ryan McLaren, Assistant U.S. Attorney, U.S. Attorney's Office, Eastern District of Louisiana, New Orleans, LA, for Plaintiff-Appellee

Celia Clary Rhoads, Esq., Samantha Jean Kuhn, Assistant Federal Public Defender, Federal Public Defender's Office, Eastern District of Louisiana, New Orleans, LA, for Defendant-Appellant

Before Higginbotham, Elrod, and Haynes, Circuit Judges.

Haynes, Circuit Judge:

Alfred Montgomery III pleaded guilty to two counts of felony possession of a firearm in violation of 18 U.S.C. § 922(g) (as well as one count of distribution of marijuana).¹ For the two felon in possession counts, he was sentenced to the minimum fifteen years (to run concurrently) required by the Armed Career Criminal Act of 1984 ("ACCA"), 18 U.S.C. § 924(e), because of his prior Louisiana conviction of simple burglary of an inhabited dwelling. After Montgomery was sentenced, the Supreme Court decided Rehaif v. United States , which held that a defendant's knowledge that he was a convicted felon is an element of a § 922(g) offense. ––– U.S. ––––, 139 S. Ct. 2191, 2200, 204 L.Ed.2d 594 (2019). Montgomery appeals his convictions and sentences on those counts, claiming that his convictions should be vacated because of the district court's Rehaif error and that his fifteen-year prison sentence was error because Louisiana simple burglary of an inhabited dwelling is not a predicate offense under ACCA. For the foregoing reasons, we AFFIRM.

I. BACKGROUND

In the 2018 grand jury indictment of Montgomery on the two felon in possession counts, as well as in the factual basis that was part of Montgomery's guilty plea, there was no statement that Montgomery knew that he was a felon at the time he committed the offenses. But Montgomery stipulated that he had prior convictions: one Mississippi conviction for burglary of a dwelling, which was a crime punishable by imprisonment for a term exceeding one year, and a Louisiana conviction for seven separate counts of simple burglary of an inhabited dwelling.

At Montgomery's rearraignment, the district court listed the elements of a § 922(g) conviction to confirm that Montgomery knew the elements of his offense. In doing so, the court did not state that Montgomery had to know that he was a felon at the time of his offense. The court accepted Montgomery's guilty plea.

The original presentence investigation report ("PSR") calculated an advisory Sentencing Guidelines range of forty-five to fifty-seven months’ imprisonment based on a total offense level of 17 and a criminal history category of V. Montgomery's criminal history included three prior convictions: (1) a 2010 Mississippi conviction for selling cocaine, (2) 2010 convictions on eight counts of Louisiana simple burglary of an inhabited dwelling,² which were counted as a single conviction for criminal history purposes, and (3) a 2011 Mississippi conviction for burglary of a dwelling.

The Government objected to the PSR, contending that Montgomery's prior convictions qualified him as an armed career criminal for purposes of ACCA. Under ACCA, a defendant is an armed career criminal and subject to a mandatory minimum of fifteen years’ imprisonment for felony possession of a firearm if he has three prior convictions for a "violent felony" or a "serious drug offense." 18 U.S.C. § 924(e)(1). The Government argued that Louisiana simple burglary of an inhabited dwelling is a "violent felony" and that Montgomery's convictions on eight counts of this offense counted as eight separate convictions; it also argued that Montgomery's conviction for selling cocaine was a "serious drug offense." The U.S. Probation Office agreed with the objection in part: It determined that Montgomery's conviction of Louisiana simple burglary of an inhabited dwelling, Mississippi burglary of a dwelling, and selling cocaine were three predicate offenses that subjected Montgomery to an enhanced sentence under ACCA. The Probation Office revised Montgomery's total offense level to 30 and calculated an imprisonment range of 180 to 188 months.

Montgomery objected to the revised PSR, arguing that Louisiana simple burglary of an inhabited dwelling does not constitute a violent felony under ACCA because it does not meet the federal definition of "generic burglary." At Montgomery's sentencing hearing, the court rejected his objection and imposed the fifteen-year mandatory minimum sentence. Montgomery timely appealed.

II. DISCUSSION

Montgomery raises two issues on appeal: (1) whether his conviction should be vacated in light of the Supreme Court's decision in Rehaif , and (2) whether Louisiana simple burglary of an inhabited dwelling qualifies as "burglary" under ACCA. We AFFIRM.

A. Rehaif Error

The Supreme Court's decision in Rehaif superseded unanimous circuit precedent by requiring proof that a defendant charged with violating § 922(g) "knew he belonged to the relevant category of persons barred from possessing a firearm" at the time of his offense. Rehaif , 139 S. Ct. at 2200 ; accord id. at 2210 & n.6 (Alito, J., dissenting) (collecting appellate decisions holding that scienter was not required for § 922(g) convictions). This decision came after Montgomery pleaded guilty and was sentenced.³ As a result, the district court did not inform Montgomery of the scienter element of his § 922(g) offense, and he pleaded guilty without knowledge of this requirement. Montgomery did not challenge the validity of his guilty plea in district court.

We review an issue not raised below for plain error. United States v. Lavalais , 960 F.3d 180, 186 (5th Cir. 2020), petition for cert. filed , No. 20-5489 (U.S. Aug. 20, 2020). This standard of review also applies to Rehaif errors not raised below.⁴ Under plain error review, the defendant must show "(1) an error, (2) that is clear or obvious, and (3) that affects the defendant's substantial rights." Id. If the defendant satisfies these three conditions, we "may exercise [our] discretion to grant relief if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings." Id. "We may consider the entire district court record" to determine whether a plain error occurred. United States v. Hicks , 958 F.3d 399, 401 (5th Cir. 2020).

The district court's failure to list the scienter requirement for Montgomery's § 922(g) offense was an error that is clear and obvious.⁵ See Lavalais , 960 F.3d at 186–87. However, Montgomery is not entitled to relief because he has not shown a reasonable probability that, but for the error, he would not have entered the plea, and therefore he has not shown that the district court's error affected his substantial rights. See id. at 187 (citing United States v. Dominguez Benitez , 542 U.S. 74, 81, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004) ).

In Lavalais , we recognized that "[d]emonstrating prejudice under Rehaif will be difficult for most convicted felons for one simple reason: Convicted felons typically know they're convicted felons. And they know the Government would have little trouble proving that they knew." 960 F.3d at 184. Accordingly, we held that the district court's Rehaif error did not prejudice Lavalais. Id. at 187. Lavalais had "admitted that he was a felon convicted of a crime punishable by more than one year" in his factual basis for his plea. Id. He confirmed his felon status at his rearraignment. Id. His PSR also listed his prior felony. Id. In that regard, we observed that Lavalais failed to indicate "that his prior felony conviction was somehow new information that he did not know at the time he possessed the firearm" and that "if anything there [wa]s evidence to the contrary." Id.

Similarly, here, the evidence shows that Montgomery knew he was a felon at the time when he possessed the firearms at issue.⁶ Both possessions of a weapon occurred in June of 2016. Montgomery's PSR shows that he pleaded guilty to three separate felonies in 2010 and 2011 for which he received sentences of 10 years (6 years suspended), 12 years (11 years suspended), and 10 years. As a result of those crimes and parole violations (and, then, being released on parole), he was in prison for over three years for his prior felonies (from 2011 to 2014) and he was on parole when he committed the § 922(g) offenses. In other words, he had spent several years in prison only a couple of years before the crimes in question. That fact and the fact of his parole status on the dates of the offenses demonstrate that Montgomery's argument—that he might not have been aware of his convicted felon status because his guilty pleas were "entered years ago when he was quite young"—lacks merit.⁷

Because there is strong evidence that Montgomery was aware of his convicted-felon status, he also cannot show that "the error seriously affects the fairness, integrity, or public reputation of judicial proceedings." See id. at 186, 188 (holding that a Rehaif error "does not remotely—let alone seriously—affect the fairness, integrity, or public reputation of judicial proceedings ... when the record contains substantial evidence that [the defendant] knew of his felon status" (quotation omitted)). We thus hold that the district court's Rehaif error did not amount to plain error and affirm Montgomery's § 922(g) convictions.

B. Federal Minimum Sentence Under ACCA

ACCA provides a list of offenses that constitute a "violent felony," and "burglary" is one of them. 18 U.S.C. § 924(e)(2)(B). However, not all state burglary convictions are considered "burglary" under ACCA—only those where the statutory "elements are the same as, or narrower than, those of the generic offense" of burglary. See Descamps v. United States , 570 U.S. 254,...