United States Court of Appeals 

for the Fifth Circuit 

No. 19-50535 

United States of America, 

Plaintiff—Appellee, 

versus

Damion Donte Montgomery, 

Defendant—Appellant. 

Appeal from the United States District Court 

for the Western District of Texas 

USDC No. 6:18-CR-334-1 

Before Owen, Chief Judge, and Davis and Southwick, Circuit Judges.

Per Curiam:

Damion Donte Montgomery pleaded guilty to possession of a firearm 

by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) & 924(a)(2) 

(Count 1); possession with intent to distribute cocaine, in violation of 21 

U.S.C. § 841(a)(1), (b)(1)(C) (Count 2); and distribution of 

methamphetamine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (Count 3). 

The district court sentenced Montgomery to 84 months on Count 1 

and to concurrent 125-month sentences on Counts 2 and 3. The court 

ordered the sentence in Count 1 to be served concurrently with the sentences 

United States Court of Appeals 

Fifth Circuit 

FILED 

October 13, 2020 

Lyle W. Cayce 

Clerk 

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No. 19-50535 

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in Counts 2 and 3. Montgomery’s sentence was an upward variance from the 

guidelines range of 84 to 105 months. 

Montgomery argues on appeal that the district court misapplied 

U.S.S.G. § 4A1.1(e) because his prior Texas offenses for aggravated robbery 

were committed on the same day, and therefore he should not have received 

a fourth criminal history point. This court reviews the district court’s 

application of the Sentencing Guidelines de novo and its factual findings for 

clear error. United States v. Velasco, 855 F.3d 691, 693 (5th Cir. 2017). 

Montgomery received the fourth point under § 4A1.1(e) because the 

two aggravated robbery counts were treated as a single prior sentence under 

U.S.S.G. § 4A1.2(a)(2), and Montgomery did not receive criminal history 

points for the sentence imposed on the second count of conviction. In other 

words, it did not matter, for purposes of § 4A1.1(e), that the aggravated 

robberies occurred on the same day. His multiple prior sentences were 

properly treated as a single sentence because he was charged with two counts 

of aggravated robbery in the same indictment, pleaded guilty to each of those 

robberies in the same proceeding, and faced sentencing for both counts on 

the same day. See § 4A1.2(a)(2); see also United States v. Chan-Xool, 716 F. 

App’x 274, 277 (5th Cir. 2017). Accordingly, Montgomery’s claim that the 

district court erred in applying § 4A1.1(e) is without merit. His criminal 

history score was correctly calculated. 

He also argues that his above-guidelines sentence is substantively 

unreasonable because the district court gave significant weight to a 2018 

charge for assault causing bodily injury of a family member that was still 

pending and another assault charge that was dismissed in 2019. 

A review of the district court’s statements at the sentencing hearing 

reflect that the court’s decision to impose an above-guidelines sentence was 

not based on Montgomery’s 2018 and 2019 assault charges. Rather, the court 

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based its decision on a number of the 18 U.S.C. § 3553(a) factors, including 

not only Montgomery’s criminal history, but also the nature and 

circumstances of the offense and the need for the sentence imposed to afford 

adequate deterrence to criminal conduct and to protect the public. 

Considering the totality of the circumstances and giving appropriate 

deference to the district court’s consideration of the § 3553(a) factors, it 

cannot be said that the court abused its discretion in imposing Montgomery’s 

sentence. See United States v. Fraga, 704 F.3d 432, 439-40 (5th Cir. 2013). 

Based on the foregoing, the judgment of the district court is 

AFFIRMED. 

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