NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 09-3320

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UNITED STATES OF AMERICA

v.

GEORGE MONTGOMERY,

also known as BUMP

George Montgomery,

Appellant

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On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Criminal No. 3-06-cr-00033-001)

District Judge: Hon. Kim R. Gibson

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Submitted Pursuant to Third Circuit LAR 34.1(a)

June 21, 2011

BEFORE: BARRY, AMBRO and COWEN , Circuit Judges

(Filed July 7, 2011 )

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OPINION

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COWEN, Circuit Judge.
2

George Montgomery appeals from the order by the United States District Court for 

the Western District of Pennsylvania dismissing his motion to vacate, set aside, or correct 

his federal criminal sentence filed pursuant to 28 U.S.C. § 2255. We will affirm.

I.

On March 1, 2007, Montgomery entered a guilty plea to one count of possession 

with the intent to distribute fifty grams or more of cocaine base in violation of 21 U.S.C. 

§§ 841(a)(1) and 841(b)(1)(A)(iii). Montgomery‘s plea agreement contained a provision 

in which he waived his right to take a direct appeal or to file a motion under § 2255.

A presentence report was submitted to the Court on May 4, 2007. It determined 

that Montgomery qualified as a career offender under U.S.S.G. § 4B1.1, which requires 

two or more convictions for either a ―controlled substance offense‖ or a ―crime of 

violence.‖ Two prior convictions were expressly identified in support of this 

classification: (1) a 2006 Pennsylvania state court conviction on the charge of 

manufacturing, delivering, and possessing with the intent to deliver a controlled 

substance; and (2) a 2001 Pennsylvania state court conviction for ―Homicide by 

Vehicle/Involuntary Manslaughter.‖ (PSR ¶ 22.) The report went on to list several other 

prior criminal convictions, including a 2006 Pennsylvania conviction for resisting arrest. 

The report ultimately calculated an adjusted total offense level of 34, a criminal history 

category of VI, and a resulting Guideline range of 262 to 327 months. 

At a sentencing hearing conducted on June 4, 2008, the District Court accepted the 

presentence report‘s classification of Montgomery as a career offender. It then sentenced 
3

him to a term of imprisonment of 262 months. Montgomery filed a notice of appeal on 

June 19, 2008, and, on February 17, 2009, we granted the government‘s motion to enforce 

the appellate waiver.

Montgomery then filed a pro se motion under § 2255 on June 8, 2009. On June 

18, 2009, the District Court dismissed his motion, finding, inter alia, that: (1) ―the 

Defendant was correctly classified as a career offender under U.S.S.G. §§ 4B1.1, 4B1.2 

because the fact that although the Defendant‘s previous plea of guilty for vehicular 

homicide may not qualify as a predicate offense for career offender status, the 

Defendant‘s simultaneous plea to involuntary manslaughter in the same judgment in the 

Court of Common Plea of Allegheny County is a proper predicate offense of a  ̳crime of 

violence‘ for career offender status;‖ and (2) Montgomery‘s corresponding claims of 

ineffective assistance of counsel with respect to his classification as a career offender 

were without merit. (SA38 (citations omitted).) 

A notice of appeal was filed on August 6, 2009. On January 12, 2010, this Court 

remanded for a ruling on whether a certificate of appealability should be issued. The 

District Court refused to grant a certificate in an order entered on January 26, 2010. On 

June 17, 2010, we granted a certificate of appealability as to the following issues:

(1) whether appellant‘s waiver of his right to collaterally attack his sentence 

and conviction was knowing and voluntary and, if so, whether an ―error 

amounting to a miscarriage of justice . . . invalidate[s] the waiver,‖ United 

States v. Khattak, 273 F.3d 557, 562 (3d Cir. 2001); see also United States 

v. Mabry, 536 F.3d 231 (3d Cir. 2008); United States v. Shedrick, 493 F.3d 

292, 297-98 (3d Cir. 2007); (2) whether the Petitioner‘s claim that the 

District Court misapplied the Sentencing Guidelines is cognizable, see

United States v. Cepero, 224 F.3d 256, 267 (3d Cir. 2000) (en banc), and, if 
4

so, whether cause and prejudice exist to excuse the Petitioner‘s failure to 

raise the claim on direct appeal, see Lines v. Larkins, 208 F.3d 153, 166 

n.20 (3rd Cir. 2000); and (3) whether the Petitioner‘s attorney rendered 

ineffective assistance of counsel by failing to argue at sentencing or on 

direct appeal that the Petitioner did not qualify for ―career offender‖ status 

under U.S.S.G. § 4B1.1(a), see Strickland v. Washington ̧466 U.S. 668 

(1984); see also Begay v. United States, 553 U.S. 137 (2008); United States 

v. Johnson, 587 F.3d 203 (3d Cir. 2009). . . .

(A6-A7.)

II.

Based on the certificate of appealability,1the parties raise a number of issues in 

this appeal.2 However, we conclude that, even setting aside his homicide and 

manslaughter convictions, Montgomery clearly had at least two qualifying convictions. 

In his District Court filings and in the opening appellate brief filed by counsel, 

Montgomery never challenged the characterization of his 2006 conviction on the charge 

of manufacturing, delivering, and possessing with the intent to deliver a controlled 

substance as a ―controlled substance offense.‖ We agree that his prior conviction 

constituted a ―controlled substance offense‖ under U.S.S.G. § 4B1.2(b). In turn, the 

Guidelines define a ―crime of violence‖ as ―any offense under federal or state law, 

punishable by imprisonment for a term exceeding one year, that – (1) has as an element 

the use, attempted use, or threatened use of physical force against the person of another, 

or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or 

 

1

 The District Court possessed subject matter jurisdiction over the underlying criminal 

prosecution pursuant to 18 U.S.C. § 3231 and over the motion to vacate pursuant to § 

2255. We have appellate jurisdiction under 28 U.S.C. §§ 1291 and 2253.

2

 In addition to the assertions raised by counsel, we have also considered the arguments 
5

otherwise involves conduct that presents a serious potential risk of physical injury to 

another.‖ U.S.S.G. § 4B1.2(a). In United States v. Stinson, 592 F.3d 460 (3d Cir.), cert. 

denied, 131 S. Ct. 114 (2010), we held that the Pennsylvania offense of resisting arrest 

constitutes a ―crime of violence,‖ id. at 463-67. In fact, Montgomery acknowledged in 

his opening appellate brief that this Court recently held that ―all resisting arrests are 

crimes of violence.‖ (Appellant‘s Brief at 27 (citing Stinson).) Because it is uncontested 

that he was convicted in a Pennsylvania court on a charge of resisting arrest, the District 

Court committed no reversible error by concluding that Montgomery was a career 

offender. Montgomery‘s related claim of ineffective assistance of counsel must likewise 

be rejected as without merit.

Because he was a career offender, Montgomery‘s classification—and his 

attorney‘s failure to object to his classification—did not give rise to any ― ̳miscarriage of 

justice‘‖ invalidating Montgomery‘s waiver of his right to collaterally challenge his 

sentence. (A6 (citations omitted).) Accordingly, we will enforce this waiver and will 

affirm the District Court‘s dismissal of Montgomery‘s § 2255 motion. 

III.

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

 

contained in Montgomery‘s pro se reply brief.