NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 11a0716n.06 No. 09-5542 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,
v. DEMARI O MONTAG UE,

Def endant- Appellant.

_______________________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) O N A P P E A L F R O M T H E UNI TED STATES DI STRI CT COURT FOR THE WES TERN DI STRI CT OF TEN

NESSEE

OP INION

Before: CLAY and STRANCH, Circuit Judges; BARRETT, District Judge. * JANE B. STRANCH, Circuit Judge. Demar io Montag ue appea ls his conviction and 110- month sentenc e for being a felon in possession of a firea rm in violat i o n of 18 U.S.C. § 922(g ). Montag ue challenges t h e sufficie ncy of t he evidence to support his conviction and the procedura l and sub s t an tive rea sonablene ss of his sentenc e. Although we are unpersua ded by Montag ue’s sufficie ncy -of- the-e vidence arg ument, we conclude that his sentence is procedur ally unrea sonable beca use the district court failed to appre ciate its authority to reje ct or vary , on policy g rounds, from the Sentencing Guidelines’ stolen-fire arm enhanc ement. Consequently , we AF F IRM Montag ue’s conviction, but VACATE his sentence and REMAND for r esente ncing

.

The Honora

ble Michae l R. Ba

rre tt, United States District J udg e for the Southern District of * Ohio, sitti ng by

desig nation.No. 09-5542

United States v. Montague I. BACKG ROUND On November 8, 2007, Montag ue was indicated on one count of being a felon in possession of a firea rm in violation of 18 U.S.C. § 922(g ). On Marc h 27, 2008, a superse ding indictment added a second cou n t fo r k n owing ly possessing a s tolen firea rm in violation of 18 U.S.C. § 922(j). The char g es ori gi n at ed fr o m a traff ic stop of a vehicle in which Montag ue was riding with two other individuals. Montag ue was ri d i n g i n the backseat with a white towel or bandana around his fac e, which, along with a missing rea r-view mirror, drew the attention of Offic er Wallace of the Memphis Police Depa

rtment. Victims of sever al robber ies in the are a had descr ibed the perpe trator as having a white towe l or banda

na wr apped a

round his fac e. At trial, Offic er W allace testified t hat during t he traffic stop, he saw Mo n t agu e repe atedly

rea ch down betwee n his leg s while seate d in the vehicle, despite repe ated instructions to stop doing

so. S ev era l other office rs at the scene witnessed simil ar behavior

. Offic er Br onstein observe d Montag ue rea ching down and moving around as if he was try ing to conceal something on the floorboar d. Offic er Robins on also testified t h at he saw Montag ue attempting t o shove som ething underne ath the seat, and that eac h time the office r would move his head a littl e bit, Montag ue would

rea ch down below his seat. As the officers removed Montag ue from the vehicle, Offic er W allace

saw a pistol “in plain view” on the floorboa rd in front of Monta g ue’s se at. Off icer Br onstein also saw the g un on the floorboa rd, whe re Montag ue had be en sea ted, as did Off

icer Robinson. The jury convicted Montag ue of the felon in possession char g e, but acq u i t t ed h i m of knowing ly possessing a s tolen firearm

. The P rese ntence I nvestig ation Report (“PS R”) calculated

a total offe nse level of 28, which included two two-l ev el en h ance ments, one for obstruction of 2No. 09-5542

United States v. Montague justice, U.S.S.G. § 3C1.1, and one for posse ssion of a stolen firearm, U.S.S .G. § 2K2.1(b) (4)( A). A t s e n te n c in g , the district court declined to apply the first enhanc ement, finding insufficient evi d e n c e that Montag ue had obstructed justice. The court, howeve r, applied the stolen-fire arm enhanc ement beca use there was no dispute that the fire arm wa s stolen and the Guidelines c ommentary provides that the enhanc ement strictly applies re gar dless of whether the defe ndant knew the firea rm was stolen. The court denied Montague ’s re quest that it vary from the stolen-fire arm enhance ment on policy g rounds beca

use the enhanc ement l ac k ed a reliable empirica l basis. I n doing so, the court repe atedly expressed i t s v i ew t hat it is not the district court’s job to “fig ure out whether the Guidelines ar e justified or not.” Ba sed on a total offe nse level of 26 and a criminal history cate g ory V, the district court calc ulated the Sentencing Guidelines rang e of imprisonment to be 110 to 120 months. The district 1

co u rt imposed a sentenc e of 110 months to be followed by three y ear s of supervised releas e. M o n tag ue filed this timely appea l, challeng ing the sufficie ncy of the evidenc e to support hi s conviction and the pr ocedur al and substantive r easona bleness of his sente nce.

The Guide lines would have c alled for a ra ng e of 110 to 137 months of imprisonment, but 1 a statutory maxi mum sentenc e of 10 y ear s pursuant to 18 U.S.C. § 922(g ) cappe d the high end of the g uidelines rang e at 120 months of imprisonment. 3No. 09-5542

United States v. Montague II. ANALYSIS A. Suf

fi ciency of the Evidence to Supp ort M ontague’s Conviction 1. Stand ard of Review When considering a sufficie ncy -of- the-e vidence challeng e to a conviction under 18 U.S.C. § 922(g ), this Court does not “weig h the evidenc e pre sented, c onsider the c redibility of witnesses,

or substitut e [i ts] judgme nt for that of the jury .” United States v. M/G Transp. Servs., Inc. , 173 F.3d 584, 588–89 (6th Cir. 1999). Rather, “the question befor e us is whether , ‘af ter viewing the evidenc e in the light most favor able to the prosec ution, any rational trier of fac t could have found the essential elements of the crime be y ond a re asonable doubt.’” United States v. Martinez , 588 F.3d 301, 314 (6th Cir. 2009) (quoting Jack son v. Virginia , 443 U.S. 307, 319 (1979))

. “I n making this deter mination, we reve rse a judgme nt for in s u ff iciency of evidenc e only if the judgme nt is not

s u p ported by substantial and competent evidenc e upon the rec ord as a whole, whether or not t h e evidenc e is direc t or wholly circ umstantial.” Id. (alter ations and internal quotation marks omitted). 2. Suf

fi ciency of the Evidence Analysis I n order to secur e a conviction under 18 U.S.C. § 922(g ), the Gover nment must prove three elements: (1) that the defe ndant had a previous felony conviction; (2) that the defe ndant possessed the fire ar m ; an d (3) that the firea rm trave led in or aff

ecte d interstate commerc e. United States v. Gardner , 488 F.3d 700, 713 (6th Cir. 2007). I n this case , the o n l y el em ent in dispute is the sufficie ncy of the evidenc e to support a finding that Monta gu e possessed the firea rm. “Ac tual or constructive possession is sufficie nt to g ive rise to criminal liability under § 922(g ),” United States

4No. 09-5542

United States v. Montague

v. Schreane , 331 F.3d 548, 560 (6th Cir. 2003), and both may be proven by circ umstantial evidenc e, United States v. Dav is , 577 F.3d 660, 671 ( 6th Cir. 2009). “[C] onstructive possession exis ts when a person does not have actua l possession but instead knowing ly has the power and the intention at a g iven time to exercise dominion and control over an object, eit h er d i re ctl y or throug h others.” Gardner , 488 F.3d at 713 (interna l quotation marks omitted). A defe ndant’s mere phy sical proxi mity to a g u n i s i nsufficie nt proof of constructive possession. United States v. Arnold, 486 F.3d 177, 183 (6th Cir. 2007) (en banc)

. Howeve r, as this Court summarized in United States v. Bailey , 553 F.3d 940 (6th Cir. 2009), “[i] n case s involving a police office r’s discovery of a firea rm located on or underne ath a seat of the car that the defe ndant

. . . rode in as a passeng er, courts of appea ls have found sufficie nt evidenc e to establish constructive possession when there exis ts additional evid ence bey ond proxi mity ” such as “a police office r’s testimony that he or she saw the defe ndant bend down to conce al something beneath the seat.” Id. at 948 (c ollecting authority ). H aving revie wed the rec ord, we conclude that there is sufficie nt evidenc e to support a findin g that Montag ue constructively possessed a firea rm. Not only was the firea rm found in plain view on the floorboa

rd in front of Monta g ue’s se at, but three police off icer s testified that during the traf fic stop they witnessed Montag ue repe atedly rea ch down i n the direc tion of the floorboar d as if to

conce al something. Given the proxi mity of the firea rm, and the office rs’ testimony of Montag ue’s furtive movements, a rational juror could conclude bey ond a rea sonable doubt that Montag ue constructively possessed the firea rm. This conclusion is supported b y additional circ umstantial evidenc e, including testimony by the other occupa nts of the vehicle that the g un was not theirs and 5No. 09-5542

United States v. Montague testimony by the driver of the vehicle that Montag ue subsequently reque sted that he claim owner ship of the pistol. Accor dingly , we r ejec t Montag ue’s c halleng e to the suff iciency of the e vidence

. B. District Court’s Authority to Rej ect Stolen-F irear m Enh ancem ent on P olicy Gr ound s 1. Stand ard of Review Montag ue next challeng es the proce dural rea sonablene ss of his sentenc e, alleg ing that the district court failed to appre ciate its authority to reje ct the stolen-fire arm enhanc ement on policy g rounds. This Court “re view[s] sentenc es imposed by the district court for rea sonablene ss.” United States v. W

alls , 546 F.3d 728, 736 (6th Cir. 2008). Reasona bleness cha lleng es to a sente nce, both proce dural and substantive, ar e usually considere d under an abuse- of-discr etion standard. United States v. Bolds , 511 F.3d 568, 578 (6th Cir. 2007). W hile the Government might have contended that Montag ue forf

eited his proce dural objection in the district c ourt, United States v. Vonner , 516 F.3d 382, 386 (6th Cir. 2008) (en banc) , the Gover nment expressly conce ded at oral arg ument that the heig htened plain-er

ror standard should not be applied to this claim. I n light of this conce ssion,

we need only revie w the proce dural re as o n ab l eness of Montag ue’s sentenc e for an abuse of discretion. See United States v. W illiams , 641 F.3d 758, 763–64 (6th Cir. 2011) (explaining that the Gover nment may

forf eit application of the plain-er ror standa rd by not reque sting it on appe al). 2. Authority to Re

jec t Cate gorically or Var y on Policy G rounds T h e Supreme Court addre ssed a district court’s authority to reje ct or vary from th e Sentencing Guidelines on policy g rounds in two case s involving the c rac k-coc aine Guide lines. I n Kimbrough v. United States , 552 U.S. 85 (2007), the Court held that “the coca ine Guidelines, like all other Guidelines, are ad v i sory only .” Id. at 91. I n making the deter mination whether “a 6No. 09-5542

United States v. Montague within-Guidelines sentenc e is ‘g rea ter than nece ssary ’ to serve the objectives of sentenc ing” under section 3 5 5 3 (a), the Court held that a district court “may consider the disparity betwee n the Guidelines’ trea tment of cra ck and powder coca ine offe nses.” Id. Subsequently , in Spears v. United States , 555 U.S. 261 (2009) (per curiam), the Supreme Court cla ri fi ed t h at a dis trict court has the “author ity to vary from the cra ck coca ine Guidelines based on policy disag ree ment with them, and not simply based on an individualiz ed deter mination that they y ield an excessive sent en ce in a particula r case .” Id. at 843. Acc ording ly , under Kimbrough and Spears , “district courts are entitled to vary from the c rac k-coc aine g uidelines [even] in a mine-run ca se whe re the re are no ‘particula r circ umstances’ that would otherwise justify a varia nce from the Guidelines’ sentenc ing rang e.” Id. at 843–44. I n case s decide d afte r the district court sentenc ed Montag ue, this Court has held that a district court’s discretion to reje ct cate g orica lly or vary from the Guidelines on substantive policy g rounds is not limit ed to the cra ck-c ocaine context. United States v. Herrera- Zuniga , 571 F.3d 568, 584 (6th Cir. 2009). Rather, this discretion “applies to all aspec ts of the Guidelines.” United States v. Cole , 343 F. App’x 109, 115 (6th Cir. 2009); see, e.g. , United States v. Camacho-Are llano , 614 F.3d 244, 250 (6th Cir. 2010) (re manding for rese ntencing wher e district court did not appre ciate its discretion to va ry based on disparity among fast-tra ck ear ly -disposition prog rams); United States v. Janosko , 355 F. App’x 892, 895 (6th Cir. 2009) (re cog nizi ng that “distri ct co u rt s may choose to reje ct g uideline sentenc es for child-pornog raphy offe nses simply due to policy disag ree ments with those g uidelines”).

7No. 09-5542

United States v. Montague I f a district court proce durally err s by sentenc ing a defe ndant under the mistaken belief that it lacks authority to reje ct or vary on policy g rounds, we g ener ally rema nd for rese ntencing “to g ive the district court an opportunity to impose a sentenc e with full rec og nition of its authority .” United States v. Johnson , 553 F.3d 990, 992 (6th Cir. 2009) ; accord United States v. Maye , 582 F.3d 622, 633 (6th Cir. 2009) (re manding for rese ntencing wher e rec ord indicated that district c ourt may not have been awa

re of its authority to vary on policy g round s ). R esente ncing may not be require d, howeve r, if the rec ord establishes that “the district judge would have imposed the same sentenc e if he had known of his d i s cr et i o n t o vary cate g orica lly from the

. . . Guidelines based on a policy disag ree ment.” Johnson , 553 F.3d a t 996 n.1. The Gover

nment relies on two case s in which we reje cted arg uments that a district court did not rea liz e its authority to vary cate g o r ic a ll y f r o m the stolen-fire arm enhanc ement for policy rea sons. See United States v. Moore , 372 F. App’x 576 (6th Cir. 2010); United States v. Rolack , 362 F. App’x 460 (6th Cir. 2010)

. L ike Montag ue, the defe ndants in Moore and Rolack relied heavily on J udg e Weinstein’s opinion in United States v. Handy , 570 F. Supp. 2d 437 (E.D. N. Y. 2 0 0 8 ), which invalidated the strict-liability component of t h e stolen-fire arm enhanc ement larg ely on policy g rounds. I n both case s decide d by this Court, the rec ord indicated that the district court understood its authority to reje ct or vary on policy g rounds and simply declined to exercise that authority

. See Moore , 372 F. App’ x at 581–82; Rolack , 362 F. App’ x at 465–66. The rec ord in this case , howeve r, is very differ ent fr o m t h o s e in Moore and Rolack

. At sentenc ing, the district court repea tedl y expressed t he mi staken view that it was without power to

8No. 09-5542

United States v. Montague reje ct or va

ry from the stolen-f

irea rm enha nceme nt on policy

g rounds, noting that it wa s “not [it s] job to figur e out whethe r the Guide lines are justified or not.” The c ourt stated, the only way the enhanc ement would not apply is i f I agr ee wi th Handy , and said there is no justification for the Guideline, and there fore I ’m g oing to expunge the Guideline, I ’m not g oing to follow the Guidelines in calc ulating the Guidelines. That seems to me dea d wrong . I t is an invitation across the boar d for e very Court in the country , when a Guideline enh an ce m ent issue comes up, to examine what the Sentencing Commi ssion thought to see if the Court individually thinks that the Sentencing Commi ssion proper ly considere d suff i ci ent evidenc e in order to promulg ate the Guidelines. An d t h en to deter mine, based on the Court’s persona l policy pref

ere nces, whether the Court thinks there is an appropr iat e Guideline. That’s not the law. I t’s not g ood law, post Booke r . I t’s not a fair rea ding of Kimbrough

. I t’s not something I intend to do, nor do I t h i n k i t wo u ld be any thing other than e rror

-- c lear err or, for me to do so. R78 at 17–18. At o ne point during the sentenc ing hear ing the district court seeme d to rec og nize that, in imposing sentenc e, it could consider the fac t that Montag ue did not know the g un was stolen in balanc ing the section 3553(a) fac tors. Yet, the court later expressed its view that it lacke d authority to “find that the [st o len-fir ear m] enhanc ement is not an appropr iate enhanc ement” in light of the 3553(a) fac tors. I n pronouncing sentenc e, the court reitera ted i ts belief that the enhanceme nt was “neces s ary .” Moreove r, at that time, the district court did not have the benef it of our subsequent

case s clarif

y ing tha t the rig ht to vary on policy g rounds applies to all aspe cts of the Guide lines. I n sum, our revie w of the sentenc ing transcr ipt as a whole le aves us with strong “re ason to believe that the judge did not rec og nize his authority to reje ct and vary from t he [st olen-fir ear m enhanc ement] based solely on a policy disag ree ment with [t hat enhanc ement].” Maye , 582 F.3d at 633 (interna l quotation marks omitted). For t h i s re ason, we believe Montag ue’s sentenc e is

9No. 09-5542

United States v. Montague proce durally unrea sonable. See United States v. Davy , No. 09-4106, 2011 WL 2711045, at *7 (6th Cir. J uly 12, 2011) (conc luding that sentenc e was proce durally unrea sonable partly based on district court’s comments indicating that it did not believe it could vary from the stolen-f ir e a r m enhanc ement on policy g rounds). For the first time at o ra l ar gu m ent, the Gover nment arg ued that we should infer from the

rec ord that Montag ue’s sentenc e would be unchang ed on rema nd beca use the district court indicated at s entenc i n g i t s ag ree ment with the pol icy behind t he st olen-fir ear m enhanc ement. I n particula r, it points to the court’s statement that, “as far as [ the court’s] view matters,” t he court did not “see any disjunction betwee n the [st olen-fir ear m] enhanc ement

. . . and the g oals of the Guidelines.” We initially note that the Gover nm en t wa i v ed t his arg ument by not including it in their brief to this Court. Cf. Lane v. C ity of LaFollette, Tenn. , 490 F.3d 410, 420 (6th Cir. 2007). Nonethele ss, we do n o t re ad the district court’s statement as establishing that the court nece ssarily would have imposed the same se ntence if it had rea liz ed its authority

. Be ca u s e t h e district court did not appre ciate its authority to reje ct or vary from the stolen

firea rm enhanc ement on policy g rounds, we are require d to vacate the district court’s sentenc e and

rema nd to the district court for rese ntencing

. I n doing so, we express no view as to how the district court should exercise its discre tion at resente ncing

. C. Sub stantive Re asonab leness of Montague’s Sentence Montag ue also challeng es the substantive rea sonablene ss of his sentenc e, contending th at the district court g ave an unrea sonable amount of weig ht to his y outhful criminal history

. Be cause the district court’s sentenc e is proce durally unrea sonab l e fo r the rea son explained above, and 10No. 09-5542

United States v. Montague

rese ntencing is require d for this rea son, we need not consider the substantive rea sonablene ss of the district court’s sentenc e at this time. See United States v. W ilson , 614 F.3d 219, 226 (6th Cir. 2010) (dec lining to consider substantive-re asonable ness challenge afte r finding proce dural err or in sentenc ing)

. CONCLUSION For the fore g oing rea sons, we AF F IRM Montag ue’s conviction, but VACATE his sentenc e and REMAND for r esente ncing

.

11