United States of America v. Montgomery Lebeau

United States Court of Appeals
For the Eighth Circuit
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No. 22-2604
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United States of America,
lllllllllllllllllllllPlaintiff - Appellee,
v.
Montgomery Lebeau,
lllllllllllllllllllllDefendant - Appellant.
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Appeal from United States District Court
for the District of South Dakota - Western
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Submitted: May 10, 2023
Filed: August 10, 2023
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Before COLLOTON, WOLLMAN, and BENTON, Circuit Judges.
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COLLOTON, Circuit Judge.
Montgomery Lebeau was convicted by a jury of unlawful possession of a
firearm as a felon. The district court* sentenced him to sixty months’ imprisonment.
Lebeau appeals the court’s evidentiary rulings at trial and the determination of his
*The Honorable Jeffrey L. Viken, United States District Judge for the District
of South Dakota.

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sentence. We conclude that there is no reversible error, and therefore affirm the
judgment.
I.
Lebeau was charged after police officers responded to 911 emergency calls
from Lebeau’s girlfriend, Candace Arthur. On October 31, 2021, at approximately
3:30 p.m., Arthur placed a 911 call during a domestic dispute with Lebeau, and the
dispatcher overheard an argument between the couple. Arthur was crying, and
Lebeau threatened to shoot her if she did not give him a password to unlock a cell
phone.
In a second 911 call placed several minutes later, Arthur identified Lebeau,
provided his address, and stated that he possessed a gun. Police officers arrived at
the scene and saw Lebeau outside the residence. Lebeau fled, but officers eventually
apprehended him. Officers discovered a firearm on the ground near where Lebeau
was arrested.
A grand jury charged Lebeau with unlawful possession of a firearm as a felon.
See 18 U.S.C. § 922(g)(1). Before trial, Lebeau moved in limine to exclude from
evidence the 911 calls made by Arthur. He argued that the recordings were unfairly
prejudicial because they contained references to domestic violence. The district court
denied the motion.
The case proceeded to trial. The district court admitted the recordings of the
911 calls. Later in the trial, the government called Arthur to testify. Lebeau objected
on the ground that her testimony would be cumulative of the 911 calls. The court
permitted Arthur to testify, but instructed the government not to ask questions about
domestic violence. Arthur testified that during her argument with Lebeau, she saw
him possess a black handgun.
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The jury found Lebeau guilty as charged. The district court sentenced Lebeau
within the advisory guideline range to sixty months’ imprisonment.
II.
A.
Lebeau first challenges the admission of the recordings of the 911 calls. Under
the rules of evidence, a court may exclude relevant evidence if its probative value is
“substantially outweighed” by the danger of “unfair prejudice.” Fed. R. Evid. 403.
We review a district court’s evidentiary rulings for abuse of discretion. United States
v. Banks, 43 F.4th 912, 917 (8th Cir. 2022).
The recording of the first 911 call is four minutes and fifty-five seconds long.
The call begins with Arthur crying and telling Lebeau that she is bleeding. Lebeau
then repeatedly yells at her to give him the “code” to unlock a cell phone. Over the
course of several minutes, Lebeau continues to demand the code, insults Arthur, uses
racial slurs, and threatens three times that he will shoot her in the face if she does not
comply.
The district court concluded that the recording was “extraordinarily
prejudicial,” but observed that the question under Rule 403 involves whether the
evidence is “unfairly” prejudicial. The court ultimately determined that the recording
should not be excluded, because it tended to show that Lebeau possessed a firearm,
and provided “the context in which the alleged possession occurred.”
Lebeau argues that the calls were unfairly prejudicial because they involved
domestic violence and contained inflammatory “language, threats, and disrespect.”
He suggests that the evidence created an unacceptable risk that the jury convicted him
for being a “bad guy” rather than for possessing a firearm. He asserts that the only
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relevant portions of the call were his threats to shoot Arthur, and that the recordings
should have been edited to play only fifteen seconds of the communication.
While Lebeau’s threats to shoot Arthur were highly probative, we are not
convinced that the balance of the recording was irrelevant. The entire recording,
including the threats and inflammatory language, tended to show that Lebeau’s
threats were not idle, and that he did indeed possess a firearm during the dispute.
Arthur’s frightened reaction to Lebeau’s threats supports her assertion that he held
a gun during the incident. Her statements that she was bleeding reinforced her
assertion that Lebeau hit her with a firearm. Arthur’s credibility was at issue, and the
complete recording tended to corroborate her disputed testimony. Lebeau’s proposal
to reduce the recording to fifteen seconds would have prevented consideration of this
relevant evidence of context.
Lebeau also argues that the recording of the second 911 call was unfairly
prejudicial. That recording lasts two minutes and ten seconds. Arthur told the
dispatcher that Lebeau threatened her, that he had a small black handgun, and that he
hit her on the head with the firearm. Arthur described Lebeau and said that he chased
her with the firearm. Arthur’s description of the firearm was probative because it
matched the firearm found near Lebeau after he was apprehended. The recording was
not unfairly prejudicial, and it tended to show that Lebeau possessed a firearm during
his argument with Arthur.
The district court also minimized the risk of unfair prejudice by giving a
cautionary instruction to the jury about proper use of the recordings. See United
States v. Halk, 634 F.3d 482, 488 (8th Cir. 2011). We thus conclude that the court
did not abuse its discretion when it admitted the recordings of the 911 calls.
Lebeau next contends that Arthur’s trial testimony should have been excluded
under Rule 403 because it was needlessly cumulative of the recordings of the 911
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calls. Evidence is cumulative “when it adds very little to the probative force of the
other evidence and its contribution to the truth would be outweighed by its
contribution to the length of the trial.” United States v. Robertson, 948 F.3d 912, 917
(8th Cir. 2020) (internal quotation omitted). Arthur testified at trial that during her
argument with Lebeau, she saw him hold a black handgun. That testimony from a
live witness, subject to cross-examination, concerned the ultimate question whether
Lebeau possessed a firearm. Even if Arthur’s testimony was cumulative of the
recordings, it was brief and did not “greatly lengthen the trial or burden the jury.”
Robertson, 948 F.3d at 917. The district court did not abuse its discretion in allowing
testimony from a live witness about Lebeau’s possession of a firearm.
B.
Lebeau argues that the district court committed procedural error at sentencing
by failing to order his sentence to run concurrently with a potential future sentence
for assault in the State of South Dakota. Lebeau did not raise this point in the district
court, so we review for plain error. To establish plain error warranting relief, Lebeau
must show that the district court committed an obvious error that affected his
substantial rights, and seriously affected the fairness, integrity, or public reputation
of judicial proceedings. United States v. Olano, 507 U.S. 725, 732-34 (1993). The
asserted legal error must be obvious, and not “subject to reasonable dispute.” Puckett
v. United States, 556 U.S. 129, 135 (2009); see United States v. Pazour, 609 F.3d
950, 954 (8th Cir. 2010) (per curiam).
At the time of his sentencing in this case, Lebeau had been charged with assault
in South Dakota based on the same incident with Arthur. One month later, in August
2022, he was convicted in South Dakota of “simple assault” for intentionally causing
bodily injury, and sentenced to 289 days of time served. See S.D. Codified Laws
§ 22-18-1(5).
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On appeal, Lebeau relies on a provision of the sentencing guidelines
concerning a defendant who is subject to an “anticipated” state term of imprisonment.
That section provides that when “a state term of imprisonment is anticipated to result
from another offense that is relevant conduct to the instant offense of conviction . . . ,
the sentence for the instant offense shall be imposed to run concurrently to the
anticipated term of imprisonment.” USSG § 5G1.3(c) (emphases added). Lebeau
maintains that the sentence that he ultimately received in the South Dakota assault
case was an “anticipated term of imprisonment.” On that basis, he contends that the
district court was required to impose his federal sentence to run concurrently with the
state sentence, or at least to consider this option before varying from the
recommendation of the advisory guidelines.
The parties dispute whether Lebeau’s term of imprisonment for the state assault
offense was “anticipated.” Lebeau says the state sentence was anticipated because
the state assault charge was pending in state court. The government counters that any
state sentence was speculative and not “anticipated,” because Lebeau had not been
convicted of any state offense.
We conclude that there is no plain error warranting relief, because it is not
obvious under current law that Lebeau’s state term of imprisonment was
“anticipated.” Section 5G1.3(c) does not define “anticipated,” and Lebeau cites no
authority from this court. He does cite a decision from the Second Circuit in which
the court concluded that an “‘anticipated’ state sentence must . . . encompass
sentences associated with state charges for relevant conduct that are pending at the
time of a defendant’s federal sentencing.” United States v. Olmeda, 894 F.3d 89, 93
(2d Cir. 2018) (per curiam). A decision of the Fifth Circuit also treated a future state
sentence as anticipated when state charges were pending against the federal
defendant. United States v. Looney, 606 F. App’x 744, 748 (5th Cir. 2015) (per
curiam). A later decision from the Fifth Circuit, however, found “no authority
requiring the district court to apply [§ 5G1.3] when the likelihood that a future
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sentence will be imposed is wholly speculative.” United States v. McCowan, 763 F.
App’x 369, 371 (5th Cir. 2019) (per curiam). More recently, that court cited its
conflicting unpublished decisions, and assumed without deciding that a pending state
charge makes a state sentence “anticipated.” United States v. Ochoa, 977 F.3d 354,
356-57 (5th Cir. 2020).
Given the absence of a definition in the guidelines, and the limited authority
on the issue, we think it is at least subject to reasonable dispute whether the filing of
a state charge, by itself, makes a future state sentence “anticipated” within the
meaning of § 5G1.3(c). The plain meaning of “anticipate” implies a likelihood:
“regard as probable.” New Oxford American Dictionary 68 (3d ed. 2010). When a
criminal charge is filed in state court, however, there are many possible dispositions,
including dismissal, see S.D. Codified Laws § 23A-8-2, acquittal, id. § 23A-23-1,
deferred prosecution, id. §§ 23A-3-35, 23A-3-36, deferred imposition of sentence, id.
§§ 23A-27-12.2, 23A-27-13, guilty plea to alternative charges, id. § 23A-7-9, and
conviction as charged. If Lebeau had raised the issue, then a district court reasonably
could have agreed with him and treated a future state sentence as “anticipated.” But
it is not obviously incorrect under existing law for a district court to conclude that an
“anticipated” state sentence under § 5G1.3(c) requires a greater degree of likelihood
than is inherent in the mere filing of a state criminal charge.
Lebeau also argues that his sentence is unreasonable under 18 U.S.C.
§ 3553(a). We review the reasonableness of a sentence under a deferential abuse-of-
discretion standard. Gall v. United States, 552 U.S. 38, 41 (2007). A district court
abuses its discretion when it fails to consider a relevant factor that should have
received significant weight, gives significant weight to an improper or irrelevant
factor, or considers only the appropriate factors but in weighing them commits a clear
error of judgment. United States v. Fitzpatrick, 943 F.3d 838, 840 (8th Cir. 2019).
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Lebeau claims that the district court did not properly weigh mitigating
circumstances that he argued at sentencing, including his dysfunctional childhood,
alcohol abuse, desire to seek treatment, and daughter’s death. The court specifically
addressed these mitigating factors, but also emphasized the aggravated nature of the
offense, and the need for the sentence to reflect the seriousness of the crime and
protect the public. We conclude that the court made an individualized assessment
based on the facts presented, and acted within the wide latitude available to a
sentencing judge who weighs the relevant factors. See United States v. Wilcox, 666
F.3d 1154, 1157-58 (8th Cir. 2012).
* * *
The motion to supplement the record is granted. The judgment of the district
court is affirmed.
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