2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-11-2012

USA v. Nathaniel Montgomery

Precedential or Non-Precedential: Non-Precedential

Docket No. 12-1280

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1

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 12-1280

___________

UNITED STATES OF AMERICA

v.

NATHANIEL MONTGOMERY

a/k/a

“SHU SHU”

 Nathaniel Montgomery,

 Appellant

____________________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Criminal No. 2:02-cr-00172-020)

District Judge: Honorable Stewart Dalzell

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

June 1, 2012

Before: SCIRICA, GREENAWAY, JR. and VAN ANTWERPEN, Circuit Judges

(Opinion filed: June 11, 2012 )

_________

OPINION

_________

PER CURIAM

Nathaniel Montgomery appeals the denial of the motion he filed pursuant to 18 
2

U.S.C. § 3582(c)(2) in the United States District Court for the Eastern District of 

Pennsylvania. We will affirm.

Because we write primarily for the parties, we will but briefly recite the facts of 

this case. Montgomery was indicted on a drug-conspiracy charge stemming from his role 

in the notorious Carter Organization; specifically, he was charged with conspiracy to 

distribute more than five kilograms of powder cocaine and more than fifty grams of crack 

cocaine, in violation of 21 U.S.C. § 846. Following a jury trial, Montgomery was 

convicted of the offense. The pre-sentence report (PSR) prepared by the probation office 

determined that Montgomery was “accountable for greater than 1.5 kilograms of cocaine 

base (“crack”); and greater than 150 kilograms of powder cocaine (which combine to 

equate to a minimum of 60,000 kilograms of marijuana) in furtherance of the criminal 

activity.” PSR ¶ 63. Applying the November 2003 Sentencing Guidelines, the PSR set 

Montgomery’s base offense level at 38. See U.S.S.G. § 2D1.1(c)(1) (2003). Following a 

Booker1 remand, Montgomery was resentenced in 2006 to a term of 280 months of 

incarceration. We affirmed his sentence on direct appeal. See generally United States v. 

Montgomery

Since that time, both the statutory terms and Guidelines ranges attached to crack 

offenses have been lowered, and Montgomery has endeavored to avail himself of the 

changes. In the appeal from one of Montgomery’s previous, unsuccessful attempts to 

seek relief via § 3582(c)(2), we explained to him why he might encounter difficulty 

, No. 06-1569, 2007 U.S. App. LEXIS 25258 (3d Cir. Oct. 26, 2007). 
3

premising his motion on the changed crack sentencing ranges: “[t]he more than 150 

kilograms of powder cocaine for which he was responsible supports his base offense 

level, wholly apart from any changes to the Crack Cocaine Guidelines range.” United 

States v. Montgomery

Montgomery filed this § 3582(c)(2) motion pursuant to Guidelines Amendment 

750,

, 398 F. App’x 843, 845 (3d Cir. 2010). 

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We have jurisdiction under 28 U.S.C. § 1291. While the ultimate decision to 

reduce a sentence under 18 U.S.C. § 3582(c)(2) is committed to the discretion of the 

District Court, we exercise plenary review over the Court’s legal analysis. 

arguing that he was eligible for a reduction in his sentence due to the further 

lowering of the crack Guidelines. The District Court denied relief, reemphasizing that 

Montgomery’s powder cocaine range had not changed. Montgomery appealed.

United States 

v. Styer, 573 F.3d 151, 153 (3d Cir. 2009); United States v. Doe

The District Court rightly concluded that Montgomery was not entitled to relief 

under § 3582(c)(2), which allows for a sentence reduction based on “a sentencing range 

, 564 F.3d 305, 307 n.2 

(3d Cir. 2009).

 1 United States v. Booker, 543 U.S. 220 (2005). 2 The amendment “re-promulgate[d] as permanent the temporary, emergency amendment 

(effective Nov. 1, 2010) that implemented the emergency directive in section 8 of the Fair 

Sentencing Act of 2010, Pub. L. 111–220 (the ‘Act’). The Act reduced the statutory 

penalties for cocaine base (‘crack cocaine’) offenses, eliminated the statutory mandatory 

minimum sentence for simple possession of crack cocaine, and contained directives to the 

Commission to review and amend the guidelines to account for specified aggravating and 

mitigating circumstances in certain drug cases.” U.S. Sentencing Guidelines Manual app. 

C Vol. 3, at 392 (2011), available at
4

that has subsequently been lowered by the Sentencing Commission.” The sentencing 

range for powder cocaine was left unaltered by the modifications to the crack Guidelines. 

Compare U.S.S.G. § 2D1.1(c)(1) (2011), with U.S.S.G. § 2D1.1(c)(1) (2003). Thus, our 

observation from Montgomery’s prior appeal retains its full force: the cocaine exposure 

alone would suffice to place Montgomery at a base offense level of 38. Recognizing this 

impediment, Montgomery argues that the amount of crack and powder cocaine with 

which he was associated in the PSR represented “extrapolated drug amounts”; and, thus, 

he maintains that the lowering of the Guidelines range attached to 1.5 kilograms of crack 

(compare U.S.S.G. § 2D1.1(c)(3) (2011), with U.S.S.G. § 2D1.1(c)(1) (2003)) could 

conceivably lead to an independent reevaluation of his sentence. But § 3582 authorizes 

“only a limited adjustment to an otherwise final sentence and not a plenary resentencing 

proceeding.” Dillon v. United States, ___ U.S. ___, 130 S. Ct. 2683, 2691 (2010)

(emphasis added). The District Court is not authorized, via § 3582(c)(2), to conduct the 

inquiry Montgomery seeks in the absence of a lowered Guidelines range, and here there 

is no question that the applicable range was not lowered.3

 

http://www.ussc.gov/guidelines/2011_Guidelines/Manual_PDF/Appendix_C_Vol_III.pdf

.

 Therefore, relief was properly 

denied. Because we find the language of § 3582(c)(2) sufficient to so conclude, we need 

3 Moreover, Montgomery’s bifurcation of his sentence into “crack” and “powder” 

components is undermined by the fact that he was convicted on a single count of 

conspiracy to distribute both drugs. See Montgomery, 2007 U.S. App. LEXIS 25258, at 

*3. We find no record support for Montgomery’s contention that he was sentenced 

“only” for the crack portion of the conspiracy. See, e.g., Apr. 30, 2004 Tr. 46:19–22 

(adopting the PSR, as amended, as the findings of the District Court during sentencing). 
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not address Montgomery’s claim that portions of the Guidelines are unconstitutional. 

For the foregoing reasons, we will affirm the order of the District Court.