# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted April 7, 2015

Decided April 8, 2015

Before

FRANK H. EASTERBROOK, Circuit Judge

ANN CLAIRE WILLIAMS, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

No. 14

‐ 2659

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee

,

v

.

THOMAS MONTGOMERY,

Defendant

‐ Appellant

. Appeal from the United States District Court

for the Southern District of Indiana,

Indianapolis Division.

No. 1:13CR00254

‐ 001

‐ WTL

‐ MJD

William T. Lawrence,

J udge

.

O R D E R

After Thomas Montgomery led police on a car chase, a police dog discovered

him hiding in a backyard near his discarded gun, with his car parked out front.

Montgomery pleaded guilty to unlawfully possessing a firearm as a convicted felon,

see 18 U.S.C. § 922(g)(1), and was sentenced to 66 months’ imprisonment. Montgomery

filed a notice of appeal, but his appointed attorney asserts that all possible claims are

frivolous and moves to withdraw under Anders v. California

, 386 U.S. 738, 744 (1967).

Montgomery has not accepted our invitation to comment on counsel’s motion. See C IR

.

R. 51(b). Counsel submitted a brief that explains the nature of this case and addresses

the issues that an appeal of this kind might be expected to involve. Because the analysis

in the brief appears to be thorough, we limit our review to the issues counsel discusses. NONPRECEDENTIAL DISPOSITION

To be cited onl y in accordance with Fed. R. A pp

. P. 32.1No. 14

‐ 2659 Page 2

See United States v. Bey

, 748 F.3d 774, 776 (7th Cir. 2014); United States v. Wagner

, 103 F.3d

551, 553 (7th Cir. 1996).

Counsel represents that Montgomery does not wish to have his guilty plea set

aside, and thus counsel appropriately forgoes discussing the voluntariness of the plea

or the adequacy of Montgomery’s plea colloquy. See United States v. Konczak

, 683 F.3d

348, 349 (7th Cir. 2012); United States v. Knox

, 287 F.3d 667, 670–71 (7th Cir. 2002).

Counsel first considers whether Montgomery could challenge the four

‐ level

upward adjustment he received for possessing the gun in connection with another

felony offense (resisting law enforcement). See U.S.S.G. § 2K2.1(b)(6)(B). In general a

gun is possessed in connection with another felony offense if it “facilitated, or had the

potential of facilitating” that offense. Id

. § 2K2.1 cmt. n.14(A). And an offense can

qualify as “another felony offense” even if no criminal charge was brought or

conviction obtained. Id

. § 2K2.1 cmt. n.14(C). We agree with counsel that it would be

frivolous to challenge the district court’s finding that Montgomery’s gun possession

had the potential of facilitating his attempt to evade arrest. It is a felony in Indiana to

draw a weapon while fleeing law enforcement, I ND

. C ODE § 35

‐ 44.1

‐ 3

‐ 1(a)(3), (b)(1)(B),

and Montgomery admitted that (1) a 911 call led officers to suspect he had a gun before

the chase started and (2) an officer saw a gun in his hand when he got out of his car to

escape. Under these circumstances, we would find no clear error in the district court’s

decision to apply the adjustment. See United States v. Schmitt

, 770 F.3d 524, 538–39

(7th Cir. 2014) (upholding four

‐ level adjustment for felon in possession of firearm who

also committed state felony of selling drugs to obtain the firearm); United States v. Suggs

,

624 F.3d 370, 375 (7th Cir. 2010) (upholding four

‐ level adjustment for felon in

possession of firearm who also committed state felony of resisting law enforcement by

grasping gun while ignoring officers’ orders).

Counsel also considers whether Montgomery could challenge the reasonableness

of his prison sentence, and we agree with her that such a challenge would be frivolous.

Montgomery’s 66

‐ month sentence was below the calculated guidelines range of 70 to 87

months (based on a total offense level of 25 and criminal

‐ history category of III).

Counsel gives no reason to disregard the presumption that this below

‐ guidelines

sentence is reasonable, see United States v. Womack

, 732 F.3d 745, 747 (7th Cir. 2013);

United States v. Liddell

, 543 F.3d 877, 885 (7th Cir. 2008), and we see none. The district

court adequately considered the relevant 18 U.S.C. § 3553(a) factors, including

Montgomery’s history and characteristics (highlighting Montgomery’s troubled

childhood, including an abusive stepfather), the nature and circumstances of the offenseNo. 14

‐ 2659 Page 3

(emphasizing Montgomery’s flight with a weapon to evade apprehension), and the

need to impose a sentence that reflected the seriousness of the offense.

Accordingly, counsel’s motion to withdraw is GRANTED, and the appeal is

DISMISSED.