US v. Elisha Montford, No. 11-4409 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4409 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ELISHA LEE MONTFORD, a/k/a Lee Montford, a/k/a X Easy, a/k/a Easy Montford, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at New Bern. Louise W. Flanagan, District Judge. (4:10-cr-00071-FL-3) Submitted: November 30, 2011 Decided: December 15, 2011 Before NIEMEYER, KEENAN, and DIAZ, Circuit Judges. Affirmed by unpublished per curiam opinion. Warren E. Gorman, Chevy Chase, Maryland, for Appellant. Jennifer P. May-Parker, Assistant United States Attorney, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Elisha Lee Montford pled guilty, pursuant to a plea agreement, to possession of a firearm and ammunition by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924 (2006). The district court found that Montford qualified for sentencing pursuant to the Armed Career Criminal Act ( ACCA ), 18 U.S.C. § 924(e). Pursuant to the Government s motion under 18 U.S.C. § 3553(e) (2006) and U.S. Sentencing Guidelines Manual § 5K1.1 (2010), the court sentenced Montford to 108 months in prison, below the statutory mandatory minimum sentence he faced as an armed career criminal. fifteen-year Montford timely appealed. Montford s attorney filed a brief, pursuant to Anders v. California, 386 U.S. 738 (1967), finding no meritorious grounds for appeal but questioning whether the district court properly designated Montford an armed career criminal. filed a pro se supplemental brief and an amended Montford pro se supplemental brief, 1 reiterating counsel s argument and asserting that his conviction violates the Equal Protection Clause. We affirm Montford s conviction and sentence. 1 We grant Montford s motion to file his amended pro se supplemental brief. 2 Whether a prior conviction qualifies as a predicate offense is a question of statutory interpretation that we review de novo. United States v. Harcum, 587 F.3d 219, 222 (4th Cir. 2009). To qualify for an enhanced sentence under the ACCA, Montford must have three previous convictions . . . for a violent felony or a serious drug offense, or both, committed on occasions different from one another. 18 U.S.C. § 924(e)(1). The ACCA defines a serious drug offense to include an offense under State law, involving . . . distributing, or possessing with intent to manufacture or distribute, a controlled substance . . . , for which a maximum term of imprisonment of ten years or more is prescribed by law. Montford offenses: had 18 U.S.C. § 924(e)(2)(A)(ii). at least three qualifying predicate a 1997 conviction for possession with intent to sell and deliver cocaine, for which he received a 112- to 144-month sentence under the current North Carolina Structured Sentencing Act ( NCSSA ); and 1993 and 1995 convictions for selling and delivering terms under predecessor When cocaine, the to Montford for North North was which he Carolina Carolina s sentenced in 3 received Fair Sentencing structured 1993 eight-year and prison Act, the sentencing scheme. 1995, maximum the sentence for his offenses was ten years imprisonment. 2 See N.C. Gen. Stat. §§ 14-1.1(a)(8), 90-95(a)(1) and (b)(1), repealed by NCSSA, 1993 N.C. Sess. Laws, ch. 538, § 2. that these convictions do not qualify Montford contends as predicate offenses under the ACCA because the law has changed in North Carolina and these crimes no longer carry ten-year maximum prison terms. However, as counsel concedes, the Supreme Court recently held that, for purposes of determining whether a prior state drugtrafficking conviction qualifies as a serious drug offense for armed career criminal purposes, the 'maximum term of imprisonment' for a defendant s prior state drug offense is the maximum sentence applicable to his offense when he was convicted of it. McNeill v. United States, 131 S. Ct. 2218, 2220 (2011). Thus, Montford had at least three predicate offenses and was properly designated an armed career criminal. 3 2 Montford committed both offenses before October 1, 1994, when the NCSSA became effective. Regardless of when sentencing occurs, the NCSSA applies only to offenses committed on or after its effective date. See McNeill v. United States, 131 S. Ct. 2218, 2224 (2011). 3 Because Montford had three qualifying predicate offenses, we need not address whether Montford s other prior drug offenses would qualify as serious drug offenses under the ACCA. 4 In accordance with Anders, we have reviewed the entire record and Accordingly, have found we affirm no the meritorious criminal grounds judgment. for appeal. 4 This court requires that counsel inform Montford, in writing, of the right to petition the Supreme Court of the United States for further review. If Montford requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move representation. in this court for leave to withdraw from Counsel s motion must state that a copy thereof was served on Montford. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 4 We conclude that Montford is not entitled to relief on his pro se claims. 5
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