United States v. Montrell Tucker, 4th Cir. (2016)
United States v. Montrell Tucker, 4th Cir. (2016)
No. 15-4169
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:
Decided:
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
review
defendants
abuse-of-discretion standard.
38, 41 (2007).
sentence
under
deferential
Id. at 51.
In
court
properly
calculated
the
defendants
advisory
factors,
sentence.
procedural
and
sufficiently
Id. at 49-51.
error,
reasonableness,
we
taking
18 U.S.C. 3553(a)
explained
the
selected
review
account
2
it
the
for
substantive
totality
of
the
circumstances.
Id. at 51.
only
be
rebutted
by
showing
Such a presumption
that
the
sentence
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
924(e)(2)(B)(ii)
135 S. Ct. at
(2012)is
unconstitutionally
vague.
defendants
and
invites
arbitrary
enforcement
by
judges.
2K2.1(a)(4)(A),
his
claim
that
the
district
court
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
United
under
the
disputed
Guideline.
With
respect
to
this
Cir.
2011)
(en
banc)
prohibits
district
court
from
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).
See
N.C.
Gen.
Stat.
15A-1340.17(c)
(2013)
(providing
2K2.1(a)(4)(A)
Accordingly,
we
affirm
the
to
fashion
judgment.
Tuckers
We
dispense
sentence.
with
oral
AFFIRMED