United States v. Lecelle Montgomery

• Court: Court of Appeals for the Fourth Circuit
• Decided: October 22, 2019
• Docket: 18-4286
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-4286

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

LECELLE MONTGOMERY,

Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Beaufort. Richard Mark Gergel, District Judge. (9:16-cr-00863-RMG-1)

Submitted: October 15, 2019 Decided: October 22, 2019

Before AGEE and WYNN, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.

David B. Betts, Columbia, South Carolina, for Appellant. Sherri A. Lydon, United States Attorney, Columbia, South Carolina, Marshall “Matt” Austin, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Lecelle Montgomery pleaded guilty to bank fraud in violation of 18 U.S.C.

§ 1344(2) (2012). The district court sentenced Montgomery within the Sentencing

Guidelines range to 60 months in prison and ordered her to make restitution to each of the

victims of her scheme, for a total of $1,119,440.75.

Montgomery timely appealed, and appellate counsel filed a brief pursuant to Anders

v. California, 386 U.S. 738 (1967), asserting that there were no meritorious grounds for

appeal. Montgomery did not file a pro se supplemental brief, and the Government declined

to file a response brief. We identified two potentially meritorious issues involving the

district court’s order of restitution and ordered the parties to submit supplemental briefs

addressing whether the district court erred in ordering Montgomery to make restitution to

one of her victims, Rosilyn Gibson, in the amount of $80,000, and whether the court erred

in ordering Montgomery to make restitution in the total amount of $1,119,440.75.

In their supplemental briefs, both Montgomery and the Government recognize that

the district court’s total order of restitution was incorrect because of a mathematical error

in adding up the restitution ordered for each of the nine victims. With respect to the amount

of restitution ordered to Gibson, however, it is unclear from the record whether the court’s

order of restitution was accurate. The court ordered Montgomery to pay $80,000 to this

victim, which is consistent with this victim’s loss amount as stated in a presentence report

dated February 26, 2018. In the final presentence report dated March 8, 2018, however,

the loss amount for this victim is stated as $60,000. Because Montgomery did not object

to the restitution order before the district court, we review this issue for plain error. See

2 Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 732 (1993) (stating standard

for plain error review).

The record establishes that the district court ordered restitution under the Mandatory

Victims Restitution Act (MVRA), 18 U.S.C. § 3663A (2012). See United States v. Ritchie,

858 F.3d 201, 207-08 (4th Cir. 2017). That statute required the district court to order

Montgomery to make restitution to each victim of her scheme “in the full amount of each

victim’s losses as determined by the court.” 18 U.S.C. § 3664(f)(1)(A) (2012); see 18

U.S.C. § 3663A(a)(1), (c)(1), (d). But the court could not order restitution in excess of

those amounts; the MVRA limits restitution to victims’ actual losses. See, e.g., United

States v. Fair, 699 F.3d 508, 512 (D.C. Cir. 2012) (collecting cases). As it is not clear from

the record which restitution amount represented Gibson’s actual losses, we are unable to

ascertain whether the district court erred in ordering restitution in the higher amount. See

United States v. Dawkins, 202 F.3d 711, 716 (4th Cir. 2000) (stating that district court must

make factual findings in support of restitution to “facilitate effective appellate review”).

We therefore vacate the order of restitution. See United States v. Wilkinson, 590 F.3d 259,

269-71 (4th Cir. 2010).

In accordance with Anders, we have reviewed the entire record in this case and have

found no other meritorious grounds for appeal. We therefore affirm Montgomery’s

conviction and sentence in all other respects, but we vacate the order of restitution and

remand for further consideration. This court requires that counsel inform Montgomery, in

writing, of the right to petition the Supreme Court of the United States for further review.

If Montgomery requests that a petition be filed, but counsel believes that such a petition

3 would be frivolous, then counsel may move in this court for leave to withdraw from

representation. Counsel’s motion must state that a copy thereof was served on

Montgomery.

We dispense with oral argument because the facts and legal contentions are

adequately presented in the materials before this court and argument would not aid the

decisional process.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED