United States of America v. Brenda Montgomery

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 20a0243p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BRENDA MONTGOMERY,
Defendant-Appellant.
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No. 19-6038
On Petition for Panel Rehearing.
United States District Court for the Middle District of Tennessee at Nashville;
No. 3:18-cr-00077-2—William Lynn Campbell, Jr., District Judge.
Decided and Filed: August 5, 2020
Before: MOORE, SUTTON, and WHITE, Circuit Judges.
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COUNSEL
ON PETITION FOR PANEL REHEARING: Richard W. Westling, Clay Lee, EPSTEIN,
BECKER & GREEN, P.C., Nashville, Tennessee, for Appellant. ON RESPONSE: Javier A.
Sinha, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
The panel delivered the ruling of the court. MOORE, J., delivered a separate opinion in
which WHITE, J., joined.
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ORDER
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KAREN NELSON MOORE, Circuit Judge. We deny panel rehearing in this case.
We write, however, to observe that Brenda Montgomery raised an interesting argument for the
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first time in her petition for panel rehearing, after we already had rendered our decision denying
her request for resentencing.
In our decision on appeal, we held that the district court miscalculated the Sentencing
Guidelines range for Mongtomery’s sentencing, but explained that we must affirm the district
court’s sentence if “the record shows that the district court would have imposed its sentence
regardless of the Guidelines range.” United States v. Montgomery, No. 19-6038, 2020 WL
3068461, at *2 (6th Cir. June 10, 2020) (quoting United States v. Morrison, 852 F.3d 488, 491
(6th Cir. 2017)). We determined that the error indeed was harmless in this case based on certain
features of Montgomery’s sentencing hearing.
One feature of the sentencing hearing was that, near its close, the district court stated, “If
the guideline calculation is determined to have been wrong, the Court would have imposed the
same sentence under Section 3553(a) considering those factors as a whole.” R. 300 (Sent’g Hr’g
Tr. at 68) (Page ID #8934). We counted that pledge as a point in favor of harmless error, noting
that we have done the same in similar cases. Montgomery, 2020 WL 3068461, at *2 (citing
Morrison, 852 F.3d at 491; United States v. McCarty, 628 F.3d 284, 294 (6th Cir. 2010); United
States v. Obi, 542 F.3d 148, 156 (6th Cir. 2008); United States v. Ward, 506 F.3d 468, 477 (6th
Cir. 2007); United States v. Cobb, 766 F. App’x 226, 231 (6th Cir. 2019); United States v. Steel,
609 F. App’x 851, 854–55 (6th Cir. 2015)).
Montgomery, however, points out that the district court’s statement is part of its standard
sentencing colloquy, even in cases where the parties do not object to the Sentencing Guidelines
calculation. See, e.g., United States v. Suggs, No. 3:18-cr-00099-1 (M.D. Tenn. Aug. 9, 2019),
R. 107 (Sent’g Hr’g Tr. at 4, 20) (Page ID #1068, 1084); United States v. Johnson, 3:18-cr-
00058-1 (M.D. Tenn. Jun. 7, 2019), R. 78 (Sent’g Hr’g Tr. at 7, 22) (Page ID #250, 265). We
see no reason why we should give any weight to boiler-plate language designed to thwart a
deserved resentencing. The purpose of our harmless-error analysis is to avoid the efficiency cost
of resentencing in cases where we are absolutely certain that the district court would have
announced the same sentence had it not erred. See United States v. Hazelwood, 398 F.3d 792,
801 (6th Cir. 2005). That aim plainly is not served by a standard-issue pledge that the district

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No. 19-6038 United States v. Montgomery Page 3
court would have come to the same result under the § 3553(a) factors had it calculated the
Guidelines range correctly.
Again, though, Montgomery failed to raise this argument in her initial briefing and has
brought it to our attention only on petition for panel rehearing. Unfortunately for Montgomery,
her argument came too late and is inappropriate for our consideration at this stage. Therefore,
we must stand by our original reasoning and disposition in this case, and we write simply to
voice our skepticism that a standard sentencing colloquy like the one at issue here should weigh
into our harmless-error analysis in future cases.

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