NOT RECOMMENDED FOR FULL TEXT PUBLICATION

File Name: 18a0460n.06

No. 17-3938

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff–Appellee,

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v.

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)

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ON APPEAL FROM THE

UNITED STATES DISTRICT

COURT FOR THE NORTHERN 

DISTRICT OF OHIO

MARC MONTGOMERY,

Defendant–Appellant.

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)

OPINION

Before: BATCHELDER and CLAY, Circuit Judges; and SARGUS, District Judge.

SARGUS, District Judge. Following trial, a jury found Appellant Marc Montgomery 

(“Montgomery”) guilty of aiding and abetting Levert Bates (“Bates”) in the armed robbery of Key 

Bank in violation of 18 U.S.C. § 2113(a), (d) (count one), and of aiding and abetting Bates in using 

and carrying, and brandishing a firearm during and in relation to a crime of violence in violation 

of 18 U.S.C. § 924(c)(1)(A) (count two). The trial court granted Montgomery’s judgment of 

acquittal for the brandishing element of count two. On August 28, 2017, the trial court sentenced 

Montgomery to eighty months imprisonment on count one and sixty months on count two, to run 

consecutively. (ECF No. 72.) 

 

 The Honorable Edmund A. Sargus, Jr., Chief United States District Judge for the Southern 

District of Ohio, sitting by designation.
No. 17-3938, United States v. Montgomery

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At the sentencing, the trial court applied a two-level enhancement under USSG

§ 2B3.1(b)(4)(B), finding it reasonably foreseeable to Montgomery that Bates would physically 

restrain a bank employee during the course of the robbery. Following sentencing, the district court 

imposed its judgment on August 28, 2017. (ECF No. 75.) Thereafter, Montgomery filed a timely 

notice of appeal on August 31, 2017. (ECF No. 76.) 

Montgomery now challenges his conviction based on the sufficiency of the evidence and 

also challenges application of the two-level enhancement. We find the prosecution presented and 

the jury relied on sufficient evidence to find Montgomery guilty of aiding and abetting an armed 

bank robbery. We further find that the trial court properly applied the two-level enhancement. We 

therefore AFFIRM Montgomery’s conviction and the sentence he received.

I.

On November 20, 2016, an armed robbery of Key Bank occurred in Garfield Heights, Ohio 

at 9:20 AM. That morning, Montgomery rode with Bates to the bank. At some time prior to the 

robbery, Bates informed Montgomery that he planned to rob the bank. (Appellant Br. at 18, Doc. 

24 (Montgomery admits that he knew about Bates’ plan to rob the bank “before Mr. Bates went to 

commit the robbery.”).) Evidence at trial showed that Montgomery and Bates were waiting in the 

bank’s parking lot before 9:00 AM and then that they drove through the parking lot at 9:10 AM. 

After seeing a police car parked at a nearby store, Montgomery warned Bates of the police presence 

and drove with him to investigate whether the police remained in the area. Bates and Montgomery

ultimately parked on a street near the bank. 

Video footage shows Bates leaving the car and walking towards the bank. Then, a few 

minutes later, Bates returned to the car where he put on a mask and grabbed his gun and duffel 

bag. Bates reported that Montgomery knew he had a gun and that “the two discussed and agreed 

to rob the bank using the firearm.” (Sealed Presentence Report at 4, Doc. 7.) Montgomery admits 
No. 17-3938, United States v. Montgomery

3

that he saw the gun prior to the robbery and asked Bates “[w]hat are you going to do?” (Sentencing 

Tr. 7:12–15, ECF No. 88); (Id.; GEX 17C, Timestamp 1:36:30–1:42:12.) 

Upon entering the bank, Bates pointed his loaded firearm at the first teller, Mary Sutton 

(“Sutton”), and forced her to give him money from her teller drawer. Bates then forced Sutton to 

accompany him to the vault, where a second teller, Susan Lowe (“Lowe”), was working. Bates 

ordered Lowe to put the vault’s contents in his duffle bag, threatening that if she failed to do so he 

would “blow [her] head off.” (Trial Tr. Lowe Test. at 108:11–24.) Lowe put the money in the 

bag, along with a GPS bait pack. Bates then left the bank and got into the passenger side of the 

car.1 Montgomery then drove Bates to Montgomery’s house, where Montgomery lived, which is 

approximately one to two miles from the bank. 

Seventeen minutes later, Garfield Heights Police found Montgomery and Bates at 

Montgomery’s mother’s house. Officer Matthew Krejci testified that when he walked up the 

driveway, he witnessed Montgomery holding a large stack of money. Police apprehended 

Montgomery and Bates, who were standing near “[a] green duffle bag with U.S. currency in and 

around [it] and a black semiautomatic handgun next to the bag.” (Trial Tr. Cramer Test. at 20–

21.) The money recovered from the scene matched the bank’s amount of loss, about $55,000. 

Following Montgomery’s trial, the jury convicted him of count one, aiding and abetting 

armed bank robbery, in violation of 18 U.S.C. § 2113(a) and (d), and of count two, aiding and 

abetting using, carrying, and brandishing a firearm in relation to the armed bank robbery, in 

violation of 18 U.S.C. § 924(c)(1)(A). 

 

1 The parties dispute what Montgomery did while Bates entered the bank. Whether he went to 

the gas station down the street or not is not relevant here based on Montgomery’s actions postrobbery.
No. 17-3938, United States v. Montgomery

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Montgomery moved for a judgment of acquittal pursuant to Federal Rule of Criminal 

Procedure 29, and the trial court granted the motion in part on the brandishing a firearm element, 

finding that “while there was sufficient evidence of Defendant’s intent that Levert Bates “carry or 

use” a firearm during the robbery, there was insufficient evidence that Defendant intended Bates 

to ‘brandish’ a firearm.” (Order on Mot. for J. of Acquittal at 3, ECF No. 43.) The trial court 

ultimately denied the remainder of Montgomery’s motion after the close of evidence. At 

sentencing, over Montgomery’s objection, the court applied a two-level enhancement under 

USSG. § 2B3.1(b)(4)(B), finding it foreseeable to Montgomery that Bates would forcibly move a 

bank employee during the course of the robbery.

Montgomery appeals, challenging his conviction for sufficiency of the evidence and the 

application of the sentencing enhancement. 

A. Sufficiency of the Evidence

Montgomery asserts the evidence presented at trial does not support a finding that he aided 

and abetted Bates in the robbery but, rather, that the evidence shows at most he served as an 

accessory after the fact. In support, he argues that his conduct did not arise until after the robbery 

took place, when he drove Bates from the bank to his house. 

This Court “review[s] a challenge to the sufficiency of the evidence supporting a criminal 

conviction de novo,” United States v. Robinson, 813 F.3d 251, 255 (6th Cir. 2016), with the 

defendant “bear[ing] a very heavy burden” of persuasion. United States v. Wright, 774 F.3d 1085, 

1088 (6th Cir. 2014) (quoting United States v. Prince, 214 F.3d 740, 746 (6th Cir. 2000)). In 

reviewing sufficiency, “[t]he question is ‘whether, after viewing the evidence in the light most 

favorable to the prosecution, any rational trier of fact could have found the essential elements of 

the crime beyond a reasonable doubt.” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). 
No. 17-3938, United States v. Montgomery

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Thus, the defendant can prevail “only if, viewing the record as a whole, the judgment is not 

supported by substantial and competent evidence.” Id. (quoting United States v. Blakeney, 942 

F.2d 1001, 1010 (6th Cir. 1991)).

To sustain a conviction for armed bank robbery under Section 2113(a) and (d), the 

government was required to establish:

(1) that by force or threat of force; (2) the defendant attempted to take from a person 

in another’s presence an item of value; (3) that is in the custody or control of a bank; 

and (4) in doing so, placed in jeopardy the life of any person by use of a dangerous 

weapon or device. 

United States v. Davis, 306 F.3d 398, 408–09 (6th Cir. 2002). “Aiding and abetting requires that 

a defendant in some sort associate himself with the venture, that he participate[] in it as something 

he wishes to bring about, and that he seek by his action to make it succeed.” United States v. 

Perales, 534 F. App’x 502, 504 (6th Cir. 2013) (quoting United States v. Lowery, 60 F.3d 1199, 

1202 (6th Cir. 1995)). Montgomery does not contest that Bates committed the crime of bank 

robbery but argues that the government did not show he aided and abetted Bates. To prove aiding 

and abetting, the government had to establish: “(1) an act by [Montgomery] that contributed to the 

commission of the crime; and (2) [Montgomery’s] intent to aid in the commission of the crime.” 

Id. at 504–05 (citation omitted). In contrast, a person is guilty of serving as an accessory after the 

fact when he or she, “knowing that an offense against the United States has been committed, 

receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, 

trial or punishment.” 18 U.S.C. § 3.

Montgomery’s argument fails because it ignores several significant pieces of evidence. 

Montgomery admitted that he knew Bates intended to rob the bank before the crime took place, 

that he warned Bates about the presence of police near the bank, and that he rode with Bates to 

investigate whether the police were still nearby. And it is undisputed that Montgomery served as 
No. 17-3938, United States v. Montgomery

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Bates’ getaway driver after watching Bates walk into the bank equipped with a bag, a gun, and a 

ski mask. This evidence shows that Montgomery associated himself with the robbery, encouraged 

its commission, and contributed to its success. The evidence is therefore sufficient to support 

Montgomery’s conviction for aiding and abetting the armed bank robbery. See Lowery, 60 F.3d 

at 1202.

Further in support of the jury’s conviction, Officer Krejci testified that when he tracked 

Montgomery and Bates to Montgomery’s house he found Montgomery in the garage holding a 

stack of cash while standing next to Bates and a duffel bag full of cash matching the loss the bank 

incurred. As the trial court observed at Montgomery’s sentencing, 

. . . it makes no sense at all that if Bates had been the robber and you had no 

involvement that you’d be sitting there sharing money with him in your garage . . . 

. In fact, the opposite would be true. If Bates had done it on his own, the last thing 

he would have wanted to do was let you know how much money he’d gotten.

(Sentencing Tr. 22:13–20, ECF No. 88.) This rings especially true here, as Bates managed to 

obtain roughly $55,000 from the bank. A jury could therefore infer that Montgomery further 

supported the commission of the crime by assisting with the planning of the robbery and agreeing 

in advance to serve as the getaway driver. See United States v. Akiti, 701 F.3d 883, 887 (8th Cir. 

2012) (“Because the evidence shows that Akiti met with Tang before the robbery, drove him to 

and from the robbery, and split the money from the robbery, a reasonable jury also could have 

concluded beyond a reasonable doubt that Akiti knew a credit-union robbery was being committed 

and knowingly acted in some way for the purpose of aiding the robbery.”).

Montgomery relies on Brown v. Palmer, 441 F.3d 347 (6th Cir. 2006), to support his 

assertion that there was insufficient evidence to support his conviction. In contrast to the instant 

case where Montgomery knew Bates planned to rob the bank with a gun and drove Bates from the 

robbery, in Brown “[t]he state offered no evidence that Brown had ever met the gunman prior to 
No. 17-3938, United States v. Montgomery

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arriving at the gas station, that Brown possessed a weapon or handed one to the gunman, or that 

Brown knew that the gunman was going to commit a robbery and carjacking.” Id. at 352. Thus, 

Brown is inapposite. 

We therefore find the conviction for aiding and abetting Bates in the armed bank robbery 

is supported by sufficient evidence. 

B. Application of Sentencing Enhancement USSG § 2B3.1(b)(4)(B)

Montgomery challenges the trial court’s application of a two-level sentencing enhancement 

under USSG § 2B3.1(b)(4)(B) based on Bates’ forcing Sutton to accompany him to the vault 

during the robbery. The Court reviews a trial court’s factual determinations underlying an 

application of a sentencing guideline for clear error and its legal conclusions de novo. United 

States v. Angel, 576 F.3d 318, 320 (6th Cir. 2009). “Whether the criminal acts of others in a jointly 

undertaken criminal activity are reasonably foreseeable is a question of fact, reviewable only for 

clear error.” United States v. Canestraro, 282 F.3d 427, 433 (6th Cir. 2002) (footnote omitted).

Facts found for sentencing purposes need only be supported by a preponderance of the evidence.

United States v. Gates, 461 F.3d 703, 708 (6th Cir. 2006), cert. denied, 549 U.S. 1041 (2006).

United States Sentencing Guidelines Section 2B3.1(b)(4)(B) applies a two-level sentencing 

enhancement “if any person was physically restrained to facilitate commission of the offense or to 

facilitate escape.” The application note to Section 2B3.1 explains that “[t]he guideline provides 

an enhancement for robberies where a victim was forced to accompany the defendant to another 

location . . . .” USSG § 2B3.1 Applic. Note background. In calculating the guideline range, a 

court must consider not only the defendant’s own actions, but also any other individuals’ actions 

that were “(i) within the scope of the jointly undertaken criminal activity, (ii) in furtherance of that 
No. 17-3938, United States v. Montgomery

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criminal activity, and (iii) reasonably foreseeable in connection with that criminal activity.” USSG

§ 1B1.3(a)(1). 

Montgomery does not dispute that Bates restrained Sutton when he forced her to 

accompany him to the bank’s vault. Rather, he contests the enhancement, asserting Bates’ actions 

in restraining Sutton were unforeseeable to him. The trial court’s determination that it was 

foreseeable to Montgomery that Bates would restrain a bank employee during the robbery is 

factual and is therefore reviewed for clear error. See Canestraro, 282 F.3d at 433.

Montgomery “need not have committed [the act of restraining Sutton] for the 

enhancements to apply; rather, he need only have known it was ‘reasonably probable’ that a coparticipant would commit them.” United States v. Carpenter, 819 F.3d 893 (6th Cir. 2016), rev’d 

on other grounds, 138 S. Ct. 2206. “As a general matter, an accomplice to robbery should foresee 

that robbery likely entails physical restraint or worse.” Id. (citation omitted). As Montgomery 

asserts, “foreseeable” is defined as conduct “such that a person of ordinary prudence would expect 

[the conduct] to occur or exist under the circumstances.” Foreseeable, MERRIAM-WEBSTER,

https://www.merriam-webster.com/dictionary/foreseeable (last visited June 11, 2018). The 

application note to Section 1B1.3 guides the Court with the following example of what the 

Guidelines finds foreseeable:

. . . two defendants agree to commit a robbery and, during the course of that robbery, 

the first defendant assaults and injures a victim[,] [t]he second defendant is 

accountable for the assault and injury to the victim (even if the second defendant

had not agreed to the assault and had cautioned the first defendant to be careful not 

to hurt anyone) because the assaultive conduct was within the scope of the jointly 

undertaken criminal activity (the robbery), was in furtherance of that criminal 

activity (the robbery), and was reasonably foreseeable in connection with that 

criminal activity (given the nature of the offense).

USSG §1B1.3 Applic. Note 3(D). 
No. 17-3938, United States v. Montgomery

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Here, viewed together, the circumstances of the robbery show no clear error in the 

application of the sentencing enhancement. Montgomery was aware Bates entered the bank with 

the intent to rob it and that Bates not only brought a gun in with him, but that he intended to use it

during the course of the robbery. Sutton, the bank teller, was working near the front door of the 

bank fixing a sign when Bates walked in. She was the only bank employee working in the front 

area, while Lowe was working in the vault. She testified, “[a] man came in the door, and I looked 

up at him because I wanted to acknowledge him. And I asked him, ‘[h]ow can I help you?’ and 

he had a really big green bag and he lifted up his head and he said, ‘[f]ill this bag up or I’m going 

to shoot you.’” (Trial Tr. Sutton Test. at 38:9–25; 39:1–10.) She then went over to her drawer 

and emptied it for him. Bates then forced Sutton to accompany him to the vault where Lowe was 

working. Sutton explained “he said ‘Open the door’ and I told him I couldn’t. He said, ‘Open the 

door or I’m going to shoot you.’” (Trial Tr. Sutton Test. at 39:14–25.) From inside the vault Bates 

was able to obtain more than $55,000. 

Bates’ restraint of Sutton to gain access to the bank’s vault was within the scope of and in 

furtherance of the robbery that the jury convicted Montgomery of aiding and abetting. 

Montgomery was with Bates prior to the robbery and was then available to drive him directly from 

the bank to his house. The trial court could, therefore, infer for the purposes of sentencing that 

Montgomery was aware at the time he drove Bates from the bank that the robbery took longer than 

it would have for Bates to only take money from the teller drawer. Indeed, the trial court noted 

during sentencing that “most bank robberies are in the range of [$]2[,000] to $5,000” and 

questioned “so why would Bates, if you had not been involved with the planning of the robbery 

before . . . ever open the satchel to you to let you know that he had collected over $50,000?” 

(Sentencing Tr. 22:10–24, ECF No. 88.)
No. 17-3938, United States v. Montgomery

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Because Montgomery knew of the robbery before it took place and was aware that Bates 

was armed, it was not clearly erroneous for the trial court to find it reasonably foreseeable to 

Montgomery that Bates would engage in conduct to merit the enhancement.2 Moreover, 

Montgomery admits that a substantial number of bank robberies – nearly 15% – involve physical 

restraint. Based on the evidence produced a trial, we find no clear error in the application of the 

enhancement. See Carpenter, 819 F.3d at 893. 

II.

For the foregoing reasons, we AFFIRM Montgomery’s conviction and the application of 

the sentencing enhancement.

 

2 We also note that the total applicable guideline range for Montgomery as calculated by United 

States Pretrial Services was 360 months to life and that the trial court sentenced him to consecutive 

sentences of 80 months and 60 months. (Sealed Presentence Report at 9.)