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    1) Montrell Raynor Tucker pled guilty to possession of a firearm and ammunition by a convicted felon. He received a 78-month sentence. 2) Tucker argued on appeal that his prior North Carolina conviction for breaking and entering no longer qualified as a "crime of violence" under the sentencing guidelines after the Supreme Court's decision in Johnson. 3) However, the appellate court found that Tucker had a prior 2005 North Carolina drug conviction, which did qualify as a predicate offense. Even though he received a mitigated sentence, the presumptive sentencing range was over 12 months. Therefore, the district court did not plainly err in its application of the sentencing guidelines.

    Original Description:

    Filed: 2016-01-19 Precedential Status: Non-Precedential Docket: 15-4169

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    1) Montrell Raynor Tucker pled guilty to possession of a firearm and ammunition by a convicted felon. He received a 78-month sentence. 2) Tucker argued on appeal that his prior North Carolina conviction for breaking and entering no longer qualified as a "crime of violence" under the sentencing guidelines after the Supreme Court's decision in Johnson. 3) However, the appellate court found that Tucker had a prior 2005 North Carolina drug conviction, which did qualify as a predicate offense. Even though he received a mitigated sentence, the presumptive sentencing range was over 12 months. Therefore, the district court did not plainly err in its application of the sentencing guidelines.

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    102 views5 pages

    United States v. Montrell Tucker, 4th Cir. (2016)

    Uploaded by

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    1) Montrell Raynor Tucker pled guilty to possession of a firearm and ammunition by a convicted felon. He received a 78-month sentence. 2) Tucker argued on appeal that his prior North Carolina conviction for breaking and entering no longer qualified as a "crime of violence" under the sentencing guidelines after the Supreme Court's decision in Johnson. 3) However, the appellate court found that Tucker had a prior 2005 North Carolina drug conviction, which did qualify as a predicate offense. Even though he received a mitigated sentence, the presumptive sentencing range was over 12 months. Therefore, the district court did not plainly err in its application of the sentencing guidelines.

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    of 5

    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.

    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 Courts subsequent
    decision in Johnson v. United States, 135 S. Ct. 2551 (2015).
    We affirm.
    We

    review

    defendants

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

    sentence

    under

    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

    defendants

    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

    circumstances.

    Id. at 51.

    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

    showing

    Such a presumption

    that

    the

    sentence

    unreasonable when measured against the 3553(a) factors.


    Tucker
    because

    maintains

    his

    prior

    that

    North

    breaking

    and

    entering

    no

    violence

    for

    purposes

    of

    Johnson,

    in

    which

    the

    he

    is

    entitled

    to

    conviction

    for

    longer

    constitutes

    Supreme

    2K2.1(a)(4)(A)
    Court

    held

    Id.

    resentencing

    Carolina

    USSG

    is

    that

    attempted
    crime

    in

    light

    the

    of
    of

    residual

    clause of the Armed Career Criminal Actthe 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 defendants 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

    integrity, or public reputation of judicial proceedings.

    United

    States v. Brack, 651 F.3d 388, 392 (4th Cir. 2011).


    Assuming, without deciding, that Tuckers 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

    district

    court

    from

    considering the aggravated sentencing range unless that range


    applied in the defendants 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

    See

    N.C.

    Gen.

    Stat.

    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.

    Tuckers
    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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