United States of America v. Nathaniel Montgomery

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-1569
UNITED STATES OF AMERICA
v.
NATHANIEL MONTGOMERY,
Appellant.
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(No. 02-cr-00172-20)
District Judge: Hon. Stewart Dalzell
Submitted Under Third Circuit LAR 34.1(a)
October 23, 2007
Before: SLOVITER, CHAGARES, and HARDIMAN, Circuit Judges.
(Filed: October 26, 2007)
OPINION OF THE COURT
CHAGARES, Circuit Judge.

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Nathaniel Montgomery appeals the order entered by the District Court following
our remand of this case for resentencing in light of the Supreme Court’s decision in
United States v. Booker, 543 U.S. 220 (2005). In this appeal, Montgomery’s sole
challenge is to his sentence. Montgomery contends that the District Court failed to
discharge its statutory obligation to consider the factors articulated in 18 U.S.C. § 3553(a)
in imposing his sentence. He also argues that the District Court erred when it refused to
consider the maximum potential sentence Montgomery could have received in state court.
Because there is sufficient record evidence that the District Court considered the §
3553(a) factors and imposed a sentence that reflects a reasonable application of those
factors, and because there is no merit in Montgomery’s argument that the District Court
should have considered what his sentence would have been had he been convicted of a
similar state-law offense, we will affirm the District Court’s decision.
I.
As we write only for the parties, our summary of the facts is brief. In 1997,
Courtney Carter founded what became the Carter Organization, a massive drug dealing
operation spanning the Commonwealth of Pennsylvania and Wilmington, Delaware. By
February 2002, the Carter Organization had sold over a metric ton of cocaine and crack
and engaged in numerous shootings, one of which resulted in murder. Nathaniel
Montgomery joined the operation in 1999 as a member of the “I-Block,” who were drug
dealers staffing the corner of Ithan and Locust Streets in Philadelphia. He eventually
worked his way up to co-manage a corner operation at 54th and Sansom Streets in

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Philadelphia. During his time as a dealer for the Carter Organization, Montgomery
participated in disputes with other drug gangs and was severely wounded in January
2000, when a rival gang staged a drive-by shooting on Ithan Street. Nevertheless,
Montgomery returned to drug sales and acts of violence, including a mass attack on a
rival gang leader’s residence in December 2001 that the District Court referred to as “the
shooting gallery incident” and “downtown Fallujah.” During this attack, Montgomery
repeatedly fired a Taurus 9-millimeter semi-automatic weapon; police later seized the
firearm in a traffic stop.
On October 24, 2002, a federal grand jury in the Eastern District of Pennsylvania
returned a 135-count third superseding indictment charging Montgomery and 36 co-
defendants in connection with the Carter Organization’s activities. The indictment
included a wide variety of drug, firearms, money laundering, and conspiracy charges.
Montgomery himself was charged only with conspiracy to distribute cocaine and cocaine
base (“crack”), in violation of 21 U.S.C. § 846 (Count I). He proceeded to trial with four
co-defendants, and on January 30, 2004, the jury convicted Montgomery of conspiracy
(Count I).
Following Montgomery’s conviction, a probation officer prepared a Presentence
Investigation Report (PSR). The PSR calculated the sentencing guideline range under the
United States Sentencing Guidelines (U.S.S.G.) to be 235 to 293 months, based on
Montgomery’s total offense level of 38 and a criminal history category of I. The
government objected to the PSR offense level on the grounds that there should be a two-

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level increase under U.S.S.G. § 2D1.1(b)(1) for use of a firearm in furtherance of the
conspiracy. At Montgomery’s sentencing hearing, the District Court agreed with the
government and adjusted the offense level to 40, producing a (then mandatory) U.S.S.G.
sentencing range of 292 to 365 months. The District Court then sentenced Montgomery
to 292 months in prison, and, on appeal, we remanded for resentencing in light of the
Supreme Court’s decision in Booker. On February 2, 2006, the District Court resentenced
Montgomery to 280 months imprisonment. This appeal followed. We have jurisdiction
pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we will affirm.
II.
We review a sentence imposed by a district court for reasonableness. United
States v. Cooper, 437 F.3d 324, 327 (3d Cir. 2006). This inquiry has two steps, because,
in the sentencing context, reasonableness has both procedural and substantive
components. See, e.g., United States v. Ferguson, 456 F.3d 660, 664 (6th Cir. 2006).
First, we must review the record to determine if the District Court exercised its discretion
by considering the relevant factors enumerated in § 3553(a). Cooper, 437 F.3d at 329. A
sentence is procedurally unreasonable if the District Court fails to consider the applicable
Guideline range or neglects to consider the other factors listed in § 3553(a). Id.
Imposition of a within-Guidelines sentence, without more, demonstrates only that the
District Court “considered one of the § 3553(a) factors–namely, the guideline range itself,
[but] it does not show the court considered the other standards reflected in that section . . .
.” Id. at 330 (internal citations omitted); see also 18 U.S.C. § 3553(a)(4) (listing

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Sentencing Guidelines as one of seven factors the District Court must consider in
imposing sentence). While “[t]here are no magic words that a district judge must invoke
when sentencing, . . . the record should demonstrate that the court considered the §
3553(a) factors [in fashioning the defendant’s sentence].” Cooper, 437 F.3d at 332. Thus,
we must determine whether the District Court gave “meaningful consideration” to the §
3553(a) factors. Id at 329. If the record does not reflect adequate consideration of the §
3553(a) factors, remand is required, and our inquiry ends there. If, however, we
determine that the District Court gave meaningful consideration to the § 3553(a) factors,
our analysis must proceed to the substantive aspect of reasonableness: an evaluation of
whether the sentence reflects a rational application of those factors. Cooper, 437 F.3d at
330.
III.
A.
Although there is no bright-line test to determine what depth of analysis qualifies
as “meaningful consideration,” we have recently articulated certain principles that guide
our review in this respect. On the one hand, the District Court “need not discuss every
argument made by a litigant if an argument is clearly without merit. Nor must a court
discuss and make findings as to each of the § 3553(a) factors if the record makes clear the
court took the factors into account in sentencing.” Cooper, 437 F.3d at 329 (internal
citations omitted). On the other hand, a “rote statement” that the Court has considered the
§ 3553(a) factors is insufficient. Id. This is so because “there is no way to review [a

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court’s] exercise of discretion if it does not articulate the reasons underlying its decision.”
United States v. Johnson, 388 F.3d 96, 101 (3d Cir. 2004). The District Court need not
recapitulate its consideration of the § 3553(a) factors during the plea colloquy, however,
if the basis for the sentence imposed is “otherwise apparent from the record.” Cooper,
437 F.3d at 329 (quoting Becker v. ARCO Chem. Co., 207 F.3d 176, 180-81) (3d Cir.
2000)). In view of these principles, the question is whether “the record as a whole
reflects rational and meaningful consideration of the factors enumerated in 18 U.S.C. §
3553(a).” United States v. Schweitzer, 454 F.3d 197, 204 (3d Cir. 2006) (quoting United
States v. Grier, 449 F.3d 558, 574 (3d Cir. 2006)).
In this case, there is ample evidence that the District Court considered the §
3553(a) factors in imposing Montgomery’s sentence. First, the District Court certainly
considered § 3553(a)(4), because it made several references to the Guidelines before
“recalibrat[ing]” the “precise term of incarceration” and sentencing Montgomery to a
prison term twelve months below the Guidelines Range. Appendix (App.) 2. Next, the
District Court adopted the findings and conclusions stated in Montgomery’s PSR. In
addition to a lengthy description of the Carter Organization’s massive and brazen
criminality, the PSR contained a detailed description of Montgomery’s specific
participation in the operation’s illegal activities. Moreover, the PSR set forth substantial
amounts of information regarding Montgomery’s history and characteristics, including his
personal and family history, employment history, mental and emotional health,
educational background, and criminal history. The District Court considered, at

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significant length, these factors and others during Montgomery’s 2004 sentencing hearing
and again at the resentencing hearing in 2006, where the Court wrestled with the
implications of the § 3553(a) factors on Montgomery’s sentence.
1.
Montgomery first argues that the District Court erred in not decreasing his offense
level by two points based upon Montgomery’s minor role in the conspiracy. At the 2004
sentencing hearing, the District Court noted that Montgomery was “not somebody who
had a sporadic participation” in the Carter Organization, and that even after
Montgomery’s grave injury in 2000, “his participation continued, notwithstanding his
near-death experience.” App. 171. Moreover, the District Court deemed Montgomery’s
participation in the 2001 “shooting gallery” incident an “escalation beyond street-selling”
and denied the minor role reduction. App. 171. At the resentencing hearing, the District
Court again denied the reduction, stating that Montgomery “was in the conspiracy for
three years. He participated in one of the most violent episodes of the conspiracy; the
‘shooting gallery’ incident.” App. 121. The record makes clear that the District Court
considered the minor role argument in depth and properly exercised its discretion in
denying the two level departure.
2.
Montgomery next argues that the District Court gave unreasonable weight to the
“shooting gallery” incident and unreasonably disregarded or discounted Montgomery’s
age, immaturity, lack of criminal history, drug abuse, rehabilitative needs, and subsequent

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remorse. He also asserts that the District Court failed to engage in a meaningful
consideration of § 3553(a)(6), which mandates that “[t]he court, in determining the
particular sentence to be imposed, shall consider . . . (6) the need to avoid unwarranted
sentence disparities” among similarly-situated defendants. 18 U.S.C. § 3553(a)(6).
To the contrary, while the District Court rightly emphasized Montgomery’s
participation in the 2001 shooting and the need to deter such activities, it also explicitly
considered Montgomery’s age during the resentencing hearing, noting that the defendant
“was barely 18" when he was shot and “at the time of the shooting gallery incident he was
19.” App. 96. The Court heard from Montgomery himself, as well as from his brother
and father, regarding Montgomery’s remorse and rehabilitation and ultimately determined
that “the defendant still doesn’t get it. . . . It’s not a bad choice. . . . It’s evil. It’s a crime.”
App. 141. Furthermore, as stated above, the Court reimposed its 2004 judgment in all
respects save for the imprisonment term, thereby readopting the PSR that detailed
Montgomery’s legal and personal history. The District Court also sufficiently considered
§ 3553(a)(6). At the resentencing hearing, the court noted the longer sentences of
Montgomery’s co-defendants and took a recess to review “a summary of all the sentences
that I’ve given in this huge matter, wherein 36 people were sentenced.” App. 138. Thus,
the Court reasonably considered Montgomery’s history and characteristics, as well as the
need to avoid sentence disparities among similarly-situated defendants, before
resentencing Montgomery to 280 months imprisonment.
3.

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Finally, Montgomery contends that the District Court erred when it refused to
consider the maximum potential sentence Montgomery could have received in state court.
There is no merit to this argument. Booker directs this Court’s reasonableness review to
the factors established under federal law for federal criminal offenses. That a separate
sovereign elects to administer its criminal sentencing scheme in a different way does not
affect our analysis under § 3553(a)(6), which aims to avoid unwarranted disparities
among sentences issued by federal courts for violations of federal law. See, e.g., United
States v. Snyder, 136 F.3d 65, 68-70 (1st Cir. 1998) (explaining that the phrase regarding
the need to avoid “unwarranted sentencing disparities” in the Sentencing Guidelines
reflects a “concern with variations among federal courts across the nation, without
reference to their state counterparts,” and that the “[G]uidelines seek to perform uniform
sentencing among federal courts in respect to federal crimes”).
B.
The sole remaining issue is the substantive aspect of reasonableness; i.e., whether
the sentence imposed by the District Court reflects a rational application of the § 3553(a)
factors. Cooper, 437 F.3d at 330. In this case, the District Court imposed a sentence
below the guidelines range–280 months. The Court considered factors such as
Montgomery’s age and low level in the operation before deciding to “fine-tune the
sentence only.” App. 141. In reaching this decision, the court stressed the length of
Montgomery’s involvement in the conspiracy; the seriousness of his conduct, particularly
the 2001 shooting incident; the need to provide general deterrence; and Montgomery’s

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level of remorse. Therefore, the record demonstrates that the District Court considered
adequately the § 3553(a) factors and reasonably applied them to the circumstances of
Montgomery’s particular case.
IV.
For the foregoing reasons, we will affirm the sentence imposed on Montgomery by
the District Court.
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