United States v. Montgomery

United States Court of Appeals
for the Fifth Circuit

No. 19-30469

United States of America,

Plaintiff—Appellee,

versus

Alfred Montgomery, III,

Defendant—Appellant.

Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:16-CR-225-1

Before Higginbotham, Elrod, and Haynes, Circuit Judges.
Haynes, Circuit Judge:
Alfred Montgomery III pleaded guilty to two counts of felony
possession of a firearm in violation of 18 U.S.C. § 922(g) (as well as one count
of distribution of marijuana).
1
For the two felon in possession counts, he was
sentenced to the minimum fifteen years (to run concurrently) required by the
Armed Career Criminal Act of 1984 (“ACCA”), 18 U.S.C. § 924(e), because
of his prior Louisiana conviction of simple burglary of an inhabited dwelling.

1
The count of distributing marijuana in violation of 21 U.S.C. § 841, for which he
received a concurrent sentence of 60 months, is not at issue here.
United States Court of Appeals
Fifth Circuit
FILED
September 10, 2020

Lyle W. Cayce
Clerk
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No. 19-30469
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After Montgomery was sentenced, the Supreme Court decided Rehaif v.
United States, which held that a defendant’s knowledge that he was a
convicted felon is an element of a § 922(g) offense. 139 S. Ct. 2191, 2200
(2019). Montgomery appeals his convictions and sentences on those counts,
claiming that his convictions should be vacated because of the district court’s
Rehaif error and that his fifteen-year prison sentence was error because
Louisiana simple burglary of an inhabited dwelling is not a predicate offense
under ACCA. For the foregoing reasons, we AFFIRM.
I. Background
In the 2018 grand jury indictment of Montgomery on the two felon in
possession counts, as well as in the factual basis that was part of
Montgomery’s guilty plea, there was no statement that Montgomery knew
that he was a felon at the time he committed the offenses. But Montgomery
stipulated that he had prior convictions: one Mississippi conviction for
burglary of a dwelling, which was a crime punishable by imprisonment for a
term exceeding one year, and a Louisiana conviction for seven separate
counts of simple burglary of an inhabited dwelling.
At Montgomery’s rearraignment, the district court listed the
elements of a § 922(g) conviction to confirm that Montgomery knew the
elements of his offense. In doing so, the court did not state that Montgomery
had to know that he was a felon at the time of his offense. The court accepted
Montgomery’s guilty plea.
The original presentence investigation report (“PSR”) calculated an
advisory Sentencing Guidelines range of forty-five to fifty-seven months’
imprisonment based on a total offense level of 17 and a criminal history
category of V. Montgomery’s criminal history included three prior
convictions: (1) a 2010 Mississippi conviction for selling cocaine, (2) 2010
convictions on eight counts of Louisiana simple burglary of an inhabited
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dwelling,
2
which were counted as a single conviction for criminal history
purposes, and (3) a 2011 Mississippi conviction for burglary of a dwelling.
The Government objected to the PSR, contending that
Montgomery’s prior convictions qualified him as an armed career criminal
for purposes of ACCA. Under ACCA, a defendant is an armed career
criminal and subject to a mandatory minimum of fifteen years’ imprisonment
for felony possession of a firearm if he has three prior convictions for a
“violent felony” or a “serious drug offense.” 18 U.S.C. § 924(e)(1). The
Government argued that Louisiana simple burglary of an inhabited dwelling
is a “violent felony” and that Montgomery’s convictions on eight counts of
this offense counted as eight separate convictions; it also argued that
Montgomery’s conviction for selling cocaine was a “serious drug offense.”
The U.S. Probation Office agreed with the objection in part: It determined
that Montgomery’s conviction of Louisiana simple burglary of an inhabited
dwelling, Mississippi burglary of a dwelling, and selling cocaine were three
predicate offenses that subjected Montgomery to an enhanced sentence
under ACCA. The Probation Office revised Montgomery’s total offense
level to 30 and calculated an imprisonment range of 180 to 188 months.
Montgomery objected to the revised PSR, arguing that Louisiana
simple burglary of an inhabited dwelling does not constitute a violent felony
under ACCA because it does not meet the federal definition of “generic
burglary.” At Montgomery’s sentencing hearing, the court rejected his
objection and imposed the fifteen-year mandatory minimum sentence.
Montgomery timely appealed.

2
Montgomery has only seven counts of simple burglary of an inhabited dwelling,
as correctly stipulated in his factual basis. The eighth count is for simple burglary under
Louisiana Revised Statute § 14:62.
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II. Discussion
Montgomery raises two issues on appeal: (1) whether his conviction
should be vacated in light of the Supreme Court’s decision in Rehaif, and
(2) whether Louisiana simple burglary of an inhabited dwelling qualifies as
“burglary” under ACCA. We AFFIRM.
A. Rehaif Error
The Supreme Court’s decision in Rehaif superseded unanimous
circuit precedent by requiring proof that a defendant charged with violating
§ 922(g) “knew he belonged to the relevant category of persons barred from
possessing a firearm” at the time of his offense. Rehaif, 139 S. Ct. at 2200;
accord id. at 2210 & n.6 (Alito, J., dissenting) (collecting appellate decisions
holding that scienter was not required for § 922(g) convictions). This
decision came after Montgomery pleaded guilty and was sentenced.
3
As a
result, the district court did not inform Montgomery of the scienter element
of his § 922(g) offense, and he pleaded guilty without knowledge of this
requirement. Montgomery did not challenge the validity of his guilty plea in
district court.
We review an issue not raised below for plain error. United States v.
Lavalais, 960 F.3d 180, 186 (5th Cir. 2020), petition for cert. filed, No. 20-5489
(U.S. Aug. 20, 2020). This standard of review also applies to Rehaif errors
not raised below.
4
Under plain error review, the defendant must show

3
Montgomery pleaded guilty on October 3, 2018, and was sentenced on June 5,
2019. The Supreme Court decided Rehaif on June 21, 2019. See 139 S. Ct. 2191.
4
Montgomery argues that the district court’s Rehaif error is a structural error that
warrants automatic reversal of his guilty plea. However, after Montgomery submitted his
brief, we decided Lavalais, which expressly rejected the argument that Rehaif errors are
structural and applied plain error review to a Rehaif error that was not raised in district
court. 960 F.3d at 187–88. We are bound by our own precedent “in the absence of an
intervening contrary or superseding decision by this court sitting en banc or by the United
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“(1) an error, (2) that is clear or obvious, and (3) that affects the defendant’s
substantial rights.” Id. If the defendant satisfies these three conditions, we
“may exercise [our] discretion to grant relief if (4) the error seriously affects
the fairness, integrity, or public reputation of judicial proceedings.” Id. “We
may consider the entire district court record” to determine whether a plain
error occurred. United States v. Hicks, 958 F.3d 399, 401 (5th Cir. 2020).
The district court’s failure to list the scienter requirement for
Montgomery’s § 922(g) offense was an error that is clear and obvious.
5
See
Lavalais, 960 F.3d at 186–87. However, Montgomery is not entitled to relief
because he has not shown a reasonable probability that, but for the error, he
would not have entered the plea, and therefore he has not shown that the
district court’s error affected his substantial rights. See id. at 187 (citing
United States v. Dominguez Benitez, 542 U.S. 74, 81 (2004)).
In Lavalais, we recognized that “[d]emonstrating prejudice under
Rehaif will be difficult for most convicted felons for one simple reason:
Convicted felons typically know they’re convicted felons. And they know
the Government would have little trouble proving that they knew.” 960 F.3d
at 184. Accordingly, we held that the district court’s Rehaif error did not
prejudice Lavalais. Id. at 187. Lavalais had “admitted that he was a felon
convicted of a crime punishable by more than one year” in his factual basis
for his plea. Id. He confirmed his felon status at his rearraignment. Id. His
PSR also listed his prior felony. Id. In that regard, we observed that Lavalais
failed to indicate “that his prior felony conviction was somehow new

States Supreme Court,” neither of which has occurred. United States v. Setser, 607 F.3d
128, 131 (5th Cir. 2010) (quotation omitted).
5
Indeed, the Government “concedes that the failure to inform Montgomery of the
Rehaif knowledge element was error that [wa]s plain.”
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information that he did not know at the time he possessed the firearm” and
that “if anything there [wa]s evidence to the contrary.” Id.
Similarly, here, the evidence shows that Montgomery knew he was a
felon at the time when he possessed the firearms at issue.
6
Both possessions
of a weapon occurred in June of 2016. Montgomery’s PSR shows that he
pleaded guilty to three separate felonies in 2010 and 2011 for which he
received sentences of 10 years (6 years suspended), 12 years (11 years
suspended), and 10 years. As a result of those crimes and parole violations
(and, then, being released on parole), he was in prison for over three years for
his prior felonies (from 2011 to 2014) and he was on parole when he
committed the § 922(g) offenses. In other words, he had spent several years
in prison only a couple of years before the crimes in question. That fact and
the fact of his parole status on the dates of the offenses demonstrate that
Montgomery’s argument—that he might not have been aware of his
convicted felon status because his guilty pleas were “entered years ago when
he was quite young”—lacks merit.
7

Because there is strong evidence that Montgomery was aware of his
convicted-felon status, he also cannot show that “the error seriously affects
the fairness, integrity, or public reputation of judicial proceedings.” See id.
at 186, 188 (holding that a Rehaif error “does not remotely—let alone
seriously—affect the fairness, integrity, or public reputation of judicial
proceedings . . . when the record contains substantial evidence that [the

6
Our focus, of course, is his knowledge at the time of the offense. But we note
that he admitted to being a convicted felon in his factual basis and confirmed his knowledge
of his status at his rearraignment.
7
In any event, Montgomery’s “knowledge of his felon status is at least subject to
reasonable debate,” so the evidence is insufficient to conclude that the district court plainly
erred. See Hicks, 958 F.3d at 401.
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defendant] knew of his felon status” (quotation omitted)). We thus hold that
the district court’s Rehaif error did not amount to plain error and affirm
Montgomery’s § 922(g) convictions.
B. Federal Minimum Sentence Under ACCA
ACCA provides a list of offenses that constitute a “violent felony,”
and “burglary” is one of them. 18 U.S.C. § 924(e)(2)(B). However, not all
state burglary convictions are considered “burglary” under ACCA—only
those where the statutory “elements are the same as, or narrower than, those
of the generic offense” of burglary. See Descamps v. United States, 570 U.S.
254, 257 (2013). For guilty pleas, the defendant must have “necessarily
admitted the elements of the generic offense.” Id. at 262 (brackets and
quotation omitted). To determine whether burglary under a state statute is
broader than generic burglary, courts generally employ “a formal categorical
approach, looking only to the statutory definitions of the prior offenses, and
not to the particular facts underlying those convictions.” Taylor v. United
States, 495 U.S. 575, 600 (1990). “At a minimum, the defendant must point
to cases in which a state has applied the statute in a broader manner,”
showing that there is “a realistic probability, not a theoretical possibility, that
the State would apply its statute to conduct that falls outside the generic
definition of the crime.” United States v. Albornoz-Albornoz, 770 F.3d 1139,
1141 (5th Cir. 2014) (per curiam) (quoting Gonzales v. Duenas-Alvarez, 549
U.S. 183, 193 (2007)). We review de novo the district court’s
characterization of a prior offense as a violent felony under ACCA. United
States v. Massey, 858 F.3d 380, 382 (5th Cir. 2017).
1. Generic Burglary
In Taylor, the Supreme Court defined generic burglary as the
“unlawful or unprivileged entry into, or remaining in, a building or other
structure, with intent to commit a crime.” 495 U.S. at 598. The Court
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observed that generic burglary is a predicate offense under ACCA “because
of its inherent potential for harm to persons”; that is, “[t]he fact that an
offender enters a building to commit a crime often creates the possibility of a
violent confrontation.” Id. at 588.
Relying on Taylor, the Court later held in United States v. Stitt that
Tennessee and Arkansas burglary statutes, both of which included “burglary
of a nonpermanent or mobile structure that is adapted or used for overnight
accommodation,” fell under the scope of generic burglary. 139 S. Ct. 399,
404, 406 (2018); see also United States v. Herrold, 941 F.3d 173, 176–77 (5th
Cir. 2019) (en banc) (addressing a similar issue under the Texas burglary
statute), petition for cert. filed, No. 19-7731 (U.S. Feb. 18, 2020). In making its
ruling, the Court reasoned that “[a]n offender who breaks into a mobile
home, an RV, a camping tent, a vehicle, or another structure that is adapted
for or customarily used for lodging runs a similar or greater risk of violent
confrontation” compared to one who breaks into a home. Stitt, 139 S. Ct. at
406.
2. Louisiana Simple Burglary of an Inhabited Dwelling
Louisiana simple burglary of an inhabited dwelling “is the
unauthorized entry of any inhabited dwelling, house, apartment, or other
structure used in whole or in part as a home or place of abode by a person or
persons with the intent to commit a felony or any theft therein.” La. Rev.
Stat. Ann.
§ 14:62.2(A). We have yet to address whether this particular
statute is generic burglary. United States v. Courtney, 783 F. App’x 444, 445–
46 (5th Cir. 2019) (per curiam), cert. denied, 140 S. Ct. 2545 (U.S. 2020).
Montgomery argues that the Louisiana statute is broader than generic
burglary because Louisiana courts’ interpretation of the phrase “other
structure used in whole or in part as a home or place of abode” covers more
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places than does the “building or structure” definition of generic burglary.
8

See Taylor, 495 U.S. at 598. He contends that the “building or structure”
component of generic burglary is limited to buildings, enclosed spaces, and
structures or vehicles adapted or customarily used for overnight
accommodation.
We disagree. Generic burglary is not so limited, as the Supreme Court
expressly held in Stitt that generic burglary covers “burglary of a ʻstructure
appurtenant to or connected with’ a covered structure.” 139 S. Ct. at 406–
07 (quoting Tenn. Code Ann. § 39-14-401(1)(C)). We have held the
same. See United States v. Castro-Alfonso, 841 F.3d 292, 296–97 (5th Cir.
2016); Albornoz-Albornoz, 770 F.3d at 1143; United States v. Garcia-Mendez,
420 F.3d 454, 456–57 (5th Cir. 2005).
9
Because the Louisiana cases
Montgomery cites all concerned a structure appurtenant to or connected
with a residential home,
10
he has failed to show that any Louisiana court “has

8
Montgomery also argues that the Louisiana statute is broader than generic
burglary because it (1) defines “entry” more broadly and (2) imposes liability on aiders and
abettors. As to the first argument, Montgomery fails to “point to cases in which a
[Louisiana] court has applied the statute in a broader manner.” See Albornoz-Albornoz, 770
F.3d at 1141. The second argument also fails because aiders and abettors of this offense
incur liability only if the principal committed all elements of the crime. See State v. Rogers,
428 So. 2d 932, 934 (La. Ct. App. 1983). As such, the inclusion of aiders and abettors in
the Louisiana statute does not exceed the scope of generic burglary. See Gonzalez v.
Duenas-Alvarez, 549 U.S. 183, 190 (2007) (holding that “the criminal activities of . . . aiders
and abettors of a generic [crime] must themselves fall within the scope of the [generic] term
. . . in the federal statute”). These arguments lack merit and do not warrant further
discussion.
9
These cases concerned whether the state burglary statute constituted the
enumerated crime of burglary for a sentence enhancement under U.S.S.G.
§ 2L1.2(b)(1)(A)(ii). Castro-Alfonso, 841 F.3d at 294; Albornoz-Albornoz, 770 F.3d at 1140–
41; Garcia-Mendez, 420 F.3d at 455–56. However, the Sentencing Guidelines and ACCA
inquiries are the same. See Albornoz-Albornoz, 770 F.3d at 1141.
10
See State v. Mitchell, 181 So. 3d 800, 806 (La. Ct. App. 2015) (concerning a
“carport [that] was built onto the rear of . . . [the] house and was abutted to the structure”);
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applied the statute in a broader manner.” See Albornoz-Albornoz, 770 F.3d at
1141.
In fact, the Louisiana statute is arguably narrower than generic
burglary because the building or structure must be “used in whole or in part
as a home or place of abode.” La. Rev. Stat. Ann.
§ 14:62.2(A). This
means that someone must be “living in the house at [the] time” of the
offense. State v. Smith, 677 So. 2d 589, 592 (La. Ct. App. 1996) (quotation
omitted). A “place adapted for overnight accommodation” would therefore
not suffice. See Stitt, 139 S. Ct. at 407. Because the place burglarized must
be one where a person lives, there is a greater “possibility of a violent
confrontation between the offender and an occupant” than in a generic
burglary. See Taylor, 495 U.S. at 588. We thus hold that Louisiana simple
burglary of an inhabited dwelling is not broader than generic burglary.
III. Conclusion
For the foregoing reasons, the judgment of the district court is
AFFIRMED.

State v. Ennis, 97 So. 3d 575, 580 (La. Ct. App. 2012) (concerning a “shed [that] was located
just outside the main residence and was within the fence that surrounded the residence”);
State v. Martin, 970 So. 2d 9, 15 (La. Ct. App. 2007) (concerning a screened-in residential
porch with doors to a bedroom and the kitchen of the house); State v. Bryant, 775 So. 2d
596, 602 (La. Ct. App. 2000) (concerning a “carport storage room” that “was under the
same roof as the house”); State v. Harris, 470 So. 2d 601, 603 (La. Ct. App. 1985)
(concerning “a garage and utility room attached to” the residential house).
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