United States Court of Appeals

For the Eighth Circuit

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No. 22-2604

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United States of America,

lllllllllllllllllllllPlaintiff - Appellee,

v.

Montgomery Lebeau,

lllllllllllllllllllllDefendant - Appellant.

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Appeal from United States District Court 

for the District of South Dakota - Western

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Submitted: May 10, 2023

Filed: August 10, 2023

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Before COLLOTON, WOLLMAN, and BENTON, Circuit Judges. 

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COLLOTON, Circuit Judge.

Montgomery Lebeau was convicted by a jury of unlawful possession of a

firearm as a felon. The district court* sentenced him to sixty months’ imprisonment. 

Lebeau appeals the court’s evidentiary rulings at trial and the determination of his

*The Honorable Jeffrey L. Viken, United States District Judge for the District

of South Dakota.
sentence. We conclude that there is no reversible error, and therefore affirm the

judgment.

I.

Lebeau was charged after police officers responded to 911 emergency calls

from Lebeau’s girlfriend, Candace Arthur. On October 31, 2021, at approximately

3:30 p.m., Arthur placed a 911 call during a domestic dispute with Lebeau, and the

dispatcher overheard an argument between the couple. Arthur was crying, and

Lebeau threatened to shoot her if she did not give him a password to unlock a cell

phone.

In a second 911 call placed several minutes later, Arthur identified Lebeau,

provided his address, and stated that he possessed a gun. Police officers arrived at

the scene and saw Lebeau outside the residence. Lebeau fled, but officers eventually

apprehended him. Officers discovered a firearm on the ground near where Lebeau

was arrested.

A grand jury charged Lebeau with unlawful possession of a firearm as a felon. 

See 18 U.S.C. § 922(g)(1). Before trial, Lebeau moved in limine to exclude from

evidence the 911 calls made by Arthur. He argued that the recordings were unfairly

prejudicial because they contained references to domestic violence. The district court

denied the motion.

The case proceeded to trial. The district court admitted the recordings of the

911 calls. Later in the trial, the government called Arthur to testify. Lebeau objected

on the ground that her testimony would be cumulative of the 911 calls. The court

permitted Arthur to testify, but instructed the government not to ask questions about

domestic violence. Arthur testified that during her argument with Lebeau, she saw

him possess a black handgun.

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The jury found Lebeau guilty as charged. The district court sentenced Lebeau

within the advisory guideline range to sixty months’ imprisonment.

II.

A.

Lebeau first challenges the admission of the recordings of the 911 calls. Under

the rules of evidence, a court may exclude relevant evidence if its probative value is

“substantially outweighed” by the danger of “unfair prejudice.” Fed. R. Evid. 403. 

We review a district court’s evidentiary rulings for abuse of discretion. United States

v. Banks, 43 F.4th 912, 917 (8th Cir. 2022).

The recording of the first 911 call is four minutes and fifty-five seconds long. 

The call begins with Arthur crying and telling Lebeau that she is bleeding. Lebeau

then repeatedly yells at her to give him the “code” to unlock a cell phone. Over the

course of several minutes, Lebeau continues to demand the code, insults Arthur, uses

racial slurs, and threatens three times that he will shoot her in the face if she does not

comply.

The district court concluded that the recording was “extraordinarily

prejudicial,” but observed that the question under Rule 403 involves whether the

evidence is “unfairly” prejudicial. The court ultimately determined that the recording

should not be excluded, because it tended to show that Lebeau possessed a firearm,

and provided “the context in which the alleged possession occurred.”

Lebeau argues that the calls were unfairly prejudicial because they involved

domestic violence and contained inflammatory “language, threats, and disrespect.” 

He suggests that the evidence created an unacceptable risk that the jury convicted him

for being a “bad guy” rather than for possessing a firearm. He asserts that the only

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relevant portions of the call were his threats to shoot Arthur, and that the recordings

should have been edited to play only fifteen seconds of the communication.

While Lebeau’s threats to shoot Arthur were highly probative, we are not

convinced that the balance of the recording was irrelevant. The entire recording,

including the threats and inflammatory language, tended to show that Lebeau’s

threats were not idle, and that he did indeed possess a firearm during the dispute. 

Arthur’s frightened reaction to Lebeau’s threats supports her assertion that he held

a gun during the incident. Her statements that she was bleeding reinforced her

assertion that Lebeau hit her with a firearm. Arthur’s credibility was at issue, and the

complete recording tended to corroborate her disputed testimony. Lebeau’s proposal

to reduce the recording to fifteen seconds would have prevented consideration of this

relevant evidence of context.

Lebeau also argues that the recording of the second 911 call was unfairly

prejudicial. That recording lasts two minutes and ten seconds. Arthur told the

dispatcher that Lebeau threatened her, that he had a small black handgun, and that he

hit her on the head with the firearm. Arthur described Lebeau and said that he chased

her with the firearm. Arthur’s description of the firearm was probative because it

matched the firearm found near Lebeau after he was apprehended. The recording was

not unfairly prejudicial, and it tended to show that Lebeau possessed a firearm during

his argument with Arthur.

The district court also minimized the risk of unfair prejudice by giving a

cautionary instruction to the jury about proper use of the recordings. See United

States v. Halk, 634 F.3d 482, 488 (8th Cir. 2011). We thus conclude that the court

did not abuse its discretion when it admitted the recordings of the 911 calls.

Lebeau next contends that Arthur’s trial testimony should have been excluded

under Rule 403 because it was needlessly cumulative of the recordings of the 911

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calls. Evidence is cumulative “when it adds very little to the probative force of the

other evidence and its contribution to the truth would be outweighed by its

contribution to the length of the trial.” United States v. Robertson, 948 F.3d 912, 917

(8th Cir. 2020) (internal quotation omitted). Arthur testified at trial that during her

argument with Lebeau, she saw him hold a black handgun. That testimony from a

live witness, subject to cross-examination, concerned the ultimate question whether

Lebeau possessed a firearm. Even if Arthur’s testimony was cumulative of the

recordings, it was brief and did not “greatly lengthen the trial or burden the jury.” 

Robertson, 948 F.3d at 917. The district court did not abuse its discretion in allowing

testimony from a live witness about Lebeau’s possession of a firearm.

B.

Lebeau argues that the district court committed procedural error at sentencing

by failing to order his sentence to run concurrently with a potential future sentence

for assault in the State of South Dakota. Lebeau did not raise this point in the district

court, so we review for plain error. To establish plain error warranting relief, Lebeau

must show that the district court committed an obvious error that affected his

substantial rights, and seriously affected the fairness, integrity, or public reputation

of judicial proceedings. United States v. Olano, 507 U.S. 725, 732-34 (1993). The

asserted legal error must be obvious, and not “subject to reasonable dispute.” Puckett

v. United States, 556 U.S. 129, 135 (2009); see United States v. Pazour, 609 F.3d

950, 954 (8th Cir. 2010) (per curiam).

At the time of his sentencing in this case, Lebeau had been charged with assault

in South Dakota based on the same incident with Arthur. One month later, in August

2022, he was convicted in South Dakota of “simple assault” for intentionally causing

bodily injury, and sentenced to 289 days of time served. See S.D. Codified Laws

§ 22-18-1(5).

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On appeal, Lebeau relies on a provision of the sentencing guidelines

concerning a defendant who is subject to an “anticipated” state term of imprisonment. 

That section provides that when “a state term of imprisonment is anticipated to result

from another offense that is relevant conduct to the instant offense of conviction . . . ,

the sentence for the instant offense shall be imposed to run concurrently to the

anticipated term of imprisonment.” USSG § 5G1.3(c) (emphases added). Lebeau

maintains that the sentence that he ultimately received in the South Dakota assault

case was an “anticipated term of imprisonment.” On that basis, he contends that the

district court was required to impose his federal sentence to run concurrently with the

state sentence, or at least to consider this option before varying from the

recommendation of the advisory guidelines.

The parties dispute whether Lebeau’s term of imprisonment for the state assault

offense was “anticipated.” Lebeau says the state sentence was anticipated because

the state assault charge was pending in state court. The government counters that any

state sentence was speculative and not “anticipated,” because Lebeau had not been

convicted of any state offense.

We conclude that there is no plain error warranting relief, because it is not

obvious under current law that Lebeau’s state term of imprisonment was

“anticipated.” Section 5G1.3(c) does not define “anticipated,” and Lebeau cites no

authority from this court. He does cite a decision from the Second Circuit in which

the court concluded that an “‘anticipated’ state sentence must . . . encompass

sentences associated with state charges for relevant conduct that are pending at the

time of a defendant’s federal sentencing.” United States v. Olmeda, 894 F.3d 89, 93

(2d Cir. 2018) (per curiam). A decision of the Fifth Circuit also treated a future state

sentence as anticipated when state charges were pending against the federal

defendant. United States v. Looney, 606 F. App’x 744, 748 (5th Cir. 2015) (per

curiam). A later decision from the Fifth Circuit, however, found “no authority

requiring the district court to apply [§ 5G1.3] when the likelihood that a future

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sentence will be imposed is wholly speculative.” United States v. McCowan, 763 F.

App’x 369, 371 (5th Cir. 2019) (per curiam). More recently, that court cited its

conflicting unpublished decisions, and assumed without deciding that a pending state

charge makes a state sentence “anticipated.” United States v. Ochoa, 977 F.3d 354,

356-57 (5th Cir. 2020).

Given the absence of a definition in the guidelines, and the limited authority

on the issue, we think it is at least subject to reasonable dispute whether the filing of

a state charge, by itself, makes a future state sentence “anticipated” within the

meaning of § 5G1.3(c). The plain meaning of “anticipate” implies a likelihood: 

“regard as probable.” New Oxford American Dictionary 68 (3d ed. 2010). When a

criminal charge is filed in state court, however, there are many possible dispositions,

including dismissal, see S.D. Codified Laws § 23A-8-2, acquittal, id. § 23A-23-1,

deferred prosecution, id. §§ 23A-3-35, 23A-3-36, deferred imposition of sentence, id.

§§ 23A-27-12.2, 23A-27-13, guilty plea to alternative charges, id. § 23A-7-9, and

conviction as charged. If Lebeau had raised the issue, then a district court reasonably

could have agreed with him and treated a future state sentence as “anticipated.” But

it is not obviously incorrect under existing law for a district court to conclude that an

“anticipated” state sentence under § 5G1.3(c) requires a greater degree of likelihood

than is inherent in the mere filing of a state criminal charge.

Lebeau also argues that his sentence is unreasonable under 18 U.S.C.

§ 3553(a). We review the reasonableness of a sentence under a deferential abuse-ofdiscretion standard. Gall v. United States, 552 U.S. 38, 41 (2007). A district court

abuses its discretion when it fails to consider a relevant factor that should have

received significant weight, gives significant weight to an improper or irrelevant

factor, or considers only the appropriate factors but in weighing them commits a clear

error of judgment. United States v. Fitzpatrick, 943 F.3d 838, 840 (8th Cir. 2019).

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Lebeau claims that the district court did not properly weigh mitigating

circumstances that he argued at sentencing, including his dysfunctional childhood,

alcohol abuse, desire to seek treatment, and daughter’s death. The court specifically

addressed these mitigating factors, but also emphasized the aggravated nature of the

offense, and the need for the sentence to reflect the seriousness of the crime and

protect the public. We conclude that the court made an individualized assessment

based on the facts presented, and acted within the wide latitude available to a

sentencing judge who weighs the relevant factors. See United States v. Wilcox, 666

F.3d 1154, 1157-58 (8th Cir. 2012).

* * * 

The motion to supplement the record is granted. The judgment of the district

court is affirmed.

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