By Marcus Fields

Today, in United States v. Montgomery, an unpublished decision, the Fourth Circuit affirmed the district court’s revocation of Montgomery’s supervised release and sentence of 22 months.

Brief Filed by Montgomery’s Counsel

Although Montgomery’s counsel did not believe there were any meritorious grounds for appeal, he filed a brief with the court raising four potential challenges to the district court’s decision.  This brief was filed in accordance with Anders v. California, a Supreme Court case outlining the responsibilities of court-appointed counsel to defendants on appeals of right when the counsel does not believe the appeal to be meritorious. The four grounds raised by Montgomery’s counsel were (1) the sentence was unreasonable, (2) Montgomery was denied chance to be heard at sentencing, (3) ineffective assistance of counsel, and (4) prosecutorial misconduct.  Montgomery was notified of his right to file a supplemental pro-se brief but declined to do so.

No Meritorious Grounds for Appeal

Anders requires the reviewing court to examine the entire record below for any meritorious grounds for appeal. Doing so, the Fourth Circuit found each of the potential grounds raised by Montgomery’s counsel to be without merit.  It noted that “a district court has broad discretion when imposing a sentence upon revocation of supervised release,” and because Montgomery did not challenge the reasonableness at trial, the Fourth Circuit reviewed the sentence for plain error.  Because Montgomery’s sentence was within the statutory maximum and not plainly unreasonable the Fourth Circuit affirmed the district court’s sentence.  The Fourth Circuit also found that Montgomery was given the chance to be heard and that there was no evidence of prosecutorial misconduct.  It declined to consider the ineffective assistance of counsel claim on direct appeal because such appeals are only allowed “where the record conclusively establishes ineffective assistance.” See United States v. Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010).

Counsel’s Ability to Withdraw From Representation

After affirming the district court’s judgment, the Fourth Circuit instructed Montgomery’s counsel to inform Montgomery of his right to petition the Supreme Court for review.  If Montgomery’s counsel believed such a petition to be frivolous, he would be allowed to move for leave to withdraw from representation.

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