United States of America v. Thomas Montgomery

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 7, 2015
Decided April 8, 2015
Before
FRANK H. EASTERBROOK, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 14‐2659
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
THOMAS MONTGOMERY,
Defendant‐Appellant.
Appeal from the United States District Court
for the Southern District of Indiana,
Indianapolis Division.
No. 1:13CR00254‐001‐WTL‐MJD
William T. Lawrence,
Judge.
O R D E R
After Thomas Montgomery led police on a car chase, a police dog discovered
him hiding in a backyard near his discarded gun, with his car parked out front.
Montgomery pleaded guilty to unlawfully possessing a firearm as a convicted felon,
see 18 U.S.C. § 922(g)(1), and was sentenced to 66 months’ imprisonment. Montgomery
filed a notice of appeal, but his appointed attorney asserts that all possible claims are
frivolous and moves to withdraw under Anders v. California, 386 U.S. 738, 744 (1967).
Montgomery has not accepted our invitation to comment on counsel’s motion. See C IR .
R. 51(b). Counsel submitted a brief that explains the nature of this case and addresses
the issues that an appeal of this kind might be expected to involve. Because the analysis
in the brief appears to be thorough, we limit our review to the issues counsel discusses.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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No. 14‐2659 Page 2
See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014); United States v. Wagner, 103 F.3d
551, 553 (7th Cir. 1996).
Counsel represents that Montgomery does not wish to have his guilty plea set
aside, and thus counsel appropriately forgoes discussing the voluntariness of the plea
or the adequacy of Montgomery’s plea colloquy. See United States v. Konczak, 683 F.3d
348, 349 (7th Cir. 2012); United States v. Knox, 287 F.3d 667, 670–71 (7th Cir. 2002).
Counsel first considers whether Montgomery could challenge the four‐level
upward adjustment he received for possessing the gun in connection with another
felony offense (resisting law enforcement). See U.S.S.G. § 2K2.1(b)(6)(B). In general a
gun is possessed in connection with another felony offense if it “facilitated, or had the
potential of facilitating” that offense. Id. § 2K2.1 cmt. n.14(A). And an offense can
qualify as “another felony offense” even if no criminal charge was brought or
conviction obtained. Id. § 2K2.1 cmt. n.14(C). We agree with counsel that it would be
frivolous to challenge the district court’s finding that Montgomery’s gun possession
had the potential of facilitating his attempt to evade arrest. It is a felony in Indiana to
draw a weapon while fleeing law enforcement, IND. C ODE § 35‐44.1‐3‐1(a)(3), (b)(1)(B),
and Montgomery admitted that (1) a 911 call led officers to suspect he had a gun before
the chase started and (2) an officer saw a gun in his hand when he got out of his car to
escape. Under these circumstances, we would find no clear error in the district court’s
decision to apply the adjustment. See United States v. Schmitt, 770 F.3d 524, 538–39
(7th Cir. 2014) (upholding four‐level adjustment for felon in possession of firearm who
also committed state felony of selling drugs to obtain the firearm); United States v. Suggs,
624 F.3d 370, 375 (7th Cir. 2010) (upholding four‐level adjustment for felon in
possession of firearm who also committed state felony of resisting law enforcement by
grasping gun while ignoring officers’ orders).
Counsel also considers whether Montgomery could challenge the reasonableness
of his prison sentence, and we agree with her that such a challenge would be frivolous.
Montgomery’s 66‐month sentence was below the calculated guidelines range of 70 to 87
months (based on a total offense level of 25 and criminal‐history category of III).
Counsel gives no reason to disregard the presumption that this below‐guidelines
sentence is reasonable, see United States v. Womack, 732 F.3d 745, 747 (7th Cir. 2013);
United States v. Liddell, 543 F.3d 877, 885 (7th Cir. 2008), and we see none. The district
court adequately considered the relevant 18 U.S.C. § 3553(a) factors, including
Montgomery’s history and characteristics (highlighting Montgomery’s troubled
childhood, including an abusive stepfather), the nature and circumstances of the offense

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No. 14‐2659 Page 3
(emphasizing Montgomery’s flight with a weapon to evade apprehension), and the
need to impose a sentence that reflected the seriousness of the offense.
Accordingly, counsel’s motion to withdraw is GRANTED, and the appeal is
DISMISSED.

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