               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                         File Name: 11a0080n.06

                                        09-3737                                FILED
                                                                            Feb 07, 2011
                       UNITED STATES COURT OF APPEALS                  LEONARD GREEN, Clerk
                            FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                   )
                                            )
      Plaintiff-Appellee,                   )
                                            )
v.                                          )   ON APPEAL FROM THE UNITED
                                            )   STATES DISTRICT COURT FOR THE
MERLE MONTGOMERY,                           )   SOUTHERN DISTRICT OF OHIO
                                            )
      Defendant-Appellant.                  )




      Before: DAUGHTREY, CLAY, and WHITE, Circuit Judges.


      PER CURIAM. Defendant Merle Montgomery pleaded guilty to the offense of

manufacturing 100 or more marijuana plants and was sentenced to 60 months in prison,

the statutorily-mandated minimum sentence for his offense. He now appeals, contending

that his sentence should have been reduced below the 60-month level under the so-called

safety-valve provisions of United States Sentencing Guidelines § 5C1.2 and 18 U.S.C.

§ 3553(f). We find no reversible error in connection with the district court’s sentencing

order and affirm.


                    FACTUAL AND PROCEDURAL BACKGROUND


      Represented by counsel, Montgomery entered into an agreement with the

government, pursuant to which he pleaded guilty to “unlawfully manufacturing 100 plants
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United States v. Montgomery

or more of marijuana, a Schedule I controlled substance, in violation of 21 U.S.C.

§ 841(a)(1) and (b)(1)(B)(vii) and 18 U.S.C. § 2.” In the plea agreement, the defendant

acknowledged that he was subject to a potential mandatory-minimum sentence of five

years in prison. He also acknowledged that the government considered him ineligible for

a sentence reduction pursuant to the safety-valve provisions of USSG § 5C1.2.

Nevertheless, “[t]he defendant reserve[d] the right to contest [that] position at the time of

sentencing.”


         During the sentencing hearing, Montgomery testified that he started the marijuana

grow operation in a detached basement of his home in an effort to raise money to defray

expenses incurred after he became too disabled to work. According to the defendant,

however, only he was involved in the criminal activity. To his knowledge, he swore, no

other family members were even aware of the existence of the grow operation, and only

he possessed a key to unlock the four padlocks that secured the sole entranceway to the

basement. He testified further that he set up the entire operation by himself without

assistance from anyone, and that an inoperable pistol and an unloaded shotgun found in

the bedroom of his home were not used in the grow operation or maintained to protect the

assets of the endeavor. Rather, Montgomery explained, he had purchased the pistol years

earlier for his wife to have while he was away from home driving trucks for a living, and the

shotgun, a birthday present from his wife, was used only to hunt deer and rabbits.

Montgomery said that the shotgun was kept unloaded and had not been fired in almost 20

years.

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       Likewise, Montgomery’s wife and two adult daughters testified at the hearing that

they were not involved in, and had no knowledge of, the grow operation in the basement

of the home in which they lived, although his daughters did admit that they had, at times,

detected a smell like growing marijuana around the premises. These family members also

corroborated the fact that the pistol and handgun had been in the house for years, that the

shotgun had not been fired by anyone for as long they could remember, and that the pistol

was fired only for demonstration purposes shortly after the defendant gave it to his wife.


       Additional testimony at the sentencing hearing offered by prosecution witnesses

described the layout of the operation, which was described as “a fairly elaborate setup.”

This testimony suggested that Montgomery had at least one partner in the grow operation.

In fact, the defendant did not contest the fact that he obtained carbon dioxide and carbon-

dioxide canisters utilized in the cultivation of the marijuana plants from a nearby company

that sold welding supplies and industrial gases. Furthermore, he conceded that those

products were purchased on an account opened by his son, David Montgomery, near the

time when the grow operation began. Even though the account was opened in the name

of David Montgomery, a salesperson from the company testified that another, older

individual, later identified as the defendant, often visited the business, purchased the

canisters of carbon dioxide, and typically signed for the purchases using the name “David

Montgomery.”




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United States v. Montgomery

       That salesperson also testified that an empty canister weighs approximately 100

pounds and that a canister filled with carbon dioxide could weigh as much as 150 pounds.

Nevertheless, the defendant insisted that he received no assistance from anyone in

transporting the canisters from his truck into the basement grow area; rather, he “just

backed the truck up to the [basement] door and let it slide off.” When discussing the grow

operation that had been conducted on the defendant’s property with law enforcement

officials, however, the defendant’s son, David Montgomery, commented that “we had

started that after dad had got sick,” thus intimating that the defendant did not act alone, but

oversaw an effort involving at least himself and his son.


       Based upon the testimony presented at the sentencing hearing, the district judge

concluded that the defendant did not qualify for a safety-valve reduction in his sentence

because Montgomery did indeed serve as an organizer, leader, manager, or supervisor of

others during the offense. More specifically, the district judge explained:


       I think that his son – well, the evidence is clear that his son was involved in
       the crime. . . . David Montgomery opened the account. He came in on
       occasion to purchase the cylinders. . . . So I think that based on that
       testimony, I will infer that Mr. Montgomery had involvement.
       It’s clear to me that Mr. Montgomery orchestrated this crime. He was clearly
       the person who organized it, if I believe his testimony. He went out and he
       bought the seeds. He came back, he planted it, he studied as to how to
       grow it and he grew it.
       But the other thing that I find totally implausible is that everyone in the family
       lived in that house with a locked basement, never went down in the
       basement, smelled marijuana but never went down in the basement to see
       what was happening.


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United States v. Montgomery

       I think that when the evidence is viewed in its totality, I agree with the
       arguments advanced by the government in its papers that there were others
       involved. Mr. Montgomery may have been the organizer or leader, but he
       was working with the assistance of others. Certainly he had – I mean, just
       on the face of it, he enlisted his son to assist him. His son opened the
       account . . . on the basis of which the defendant purchased CO2 canisters
       that he used in his grow operation. The deed of the residence was placed
       in the daughter’s name. The house was obviously used as part of the grow
       operation. So I think that he was – he did have a supervisory role in this
       crime . . . .
       Then, with respect to truthful information, to the extent that Mr. Montgomery
       said that he was the only one involved in this scheme – he persisted he was
       the only one, he persists in his position that no one ever went into the
       basement, no one ever assisted him in this scheme. To that extent, he was
       not truthful with the government . . . .


                                       DISCUSSION


       On appeal, Montgomery does not challenge his conviction for the manufacture of

more than 100 marijuana plants. Nor does he contest the provisions of 21 U.S.C.

§ 841(b)(1)(B)(vii) mandating that a sentence for such an offense “not be less than 5 years

and not more than 40 years.” He does maintain, however, that he has satisfied the

requirements for reduction of the five-year minimum sentence through application of USSG

§ 5C1.2, the safety-valve provision.


       We have long recognized that we review “the district court’s application of the

sentencing guidelines de novo and its supporting factual findings for clear error.” United

States v. Kellams, 26 F.3d 646, 648 (6th Cir. 1994) (citing United States v. Muhammad,

948 F.2d 1449, 1455 (6th Cir. 1991)). As we noted in Kellams, such “‘[c]lear error’ occurs


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United States v. Montgomery

only when we are left with the definite and firm conviction that a mistake has been

committed.”    Id. (citing Anderson v. Bessemer City, 470 U.S. 564, 573 (1985)).

Consequently, “[i]f there are two permissible views of the evidence, the factfinder’s choice

between them cannot be clearly erroneous.” Id. (citing Anderson, 470 U.S. at 574).


       Despite the seemingly mandatory nature of the five-year minimum sentence

mentioned in 21 U.S.C. § 841(b)(1)(B)(vii), section 5C1.2(a) of the sentencing guidelines

permits a district court to impose instead a guideline sentence “if the court finds that the

defendant meets the criteria in 18 U.S.C. § 3553(f)(1)-(5),” as follows:


       (1) the defendant does not have more than 1 criminal history point . . .;
       (2) the defendant did not use violence or credible threats of violence or
       possess a firearm or other dangerous weapon (or induce another participant
       to do so) in connection with the offense;
       (3) the offense did not result in death or serious bodily injury to any person;
       (4) the defendant was not an organizer, leader, manager, or supervisor of
       others in the offense, as determined under the sentencing guidelines . . .;
       and
       (5) not later than the time of the sentencing hearing, the defendant has
       truthfully provided to the Government all information and evidence the
       defendant has concerning the offense or offenses that were part of the same
       course of conduct or of a common scheme or plan, but the fact that the
       defendant has no relevant or useful other information to provide or that the
       Government is already aware of the information shall not preclude a
       determination by the court that the defendant has complied with this
       requirement.


USSG § 5C1.2(a)(1)-(5) (2008).




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United States v. Montgomery

       In this case, the parties do not dispute that Montgomery, age 63 at the time of

sentencing, had zero criminal history points, see USSG § 5C1.2(a)(1) (2008), and that the

offense of conviction did not result in death or serious bodily injury to any person, see

USSG § 5C1.2(a)(3) (2008). At issue is the applicability of two of the five safety-valve

criteria – whether defendant Montgomery was an organizer, leader, manager, or supervisor

of others in the offense, see USSG § 5C1.2(a)(4) (2008), and whether Montgomery

truthfully provided to the government all information pertinent to the grow operation, see

USSG § 5C1.2(a)(5) (2008).1 In reality, however, these two considerations have become

conflated here, because the district court’s finding that Montgomery did not truthfully

provide “all information” to the government is based solely upon its determination that the

defendant failed to admit that he was an organizer, leader, manager, or supervisor of

criminal activity that involved individuals other than himself.


       Pursuant to the provisions of 18 U.S.C. § 3553(f)(4) and USSG § 5C1.2(a)(4)

(2008), resolution of a dispute over a defendant’s status as an organizer, leader, manager,

or supervisor of others in an offense requires a court to determine whether the defendant

would receive “an adjustment for an aggravating role under § 3B1.1" of the guidelines.

See USSG § 5C1.2, comment. (n.5) (2008). “To qualify for an adjustment under [that]




       1
       In light of our decision to otherwise uphold the district court, we decline to revisit
the court’s finding that the pistol and shotgun found in the Montgomery home were not
possessed “in connection with the offense” of conviction. See USSG § 5C1.2(a)(2) (2008).


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United States v. Montgomery

section, the defendant must have been the organizer, leader, manager, or supervisor of

one or more other participants.” USSG § 3B1.1, comment. (n.2) (2008).


       Whether the defendant in this case exercised the decision-making authority of an

organizer, leader, manager, or supervisor is not at issue. Montgomery himself admits that

he devised and operated the entire marijuana-manufacturing process that was carried out

in his basement. Rather, the dispute revolves around a determination whether any other

individual was also involved in the grow operation and thus was subject to Montgomery’s

directives.


       As noted previously, the defendant denied the government’s contention that other

members of his immediate family assisted him in illegal activity. Indeed, he maintained

that no one else even knew of the operation being run from his padlocked basement.

However, the district judge was in a position to observe the witnesses at the sentencing

hearing and to make credibility determinations. From that vantage point, he discredited

Montgomery’s assertion that he had acted alone and gave credence to other testimony

indicating that family members were indeed involved in the grow operation.


       Specifically, the record establishes that David Montgomery, the defendant’s son,

opened the account from which both he and the defendant purchased carbon dioxide used

in the marijuana-growing process. Also, upon hearing of the raid at his father’s property,

David volunteered the statement to law-enforcement authorities that “we had started [the

grow operation] after dad had got sick.” Such an admission of joint action, in conjunction

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United States v. Montgomery

with the defendant’s sworn testimony that he himself was in charge of the running of the

operation, is sufficient to support the conclusion that the defendant and his son were

working together, under the father’s direction, to violate controlled-substance laws.

Moreover, David conceded that marijuana found in his residence had come from his

father’s basement.


       In addition, there was testimony that although the residence was owned by

Montgomery and his wife, the title to the house had been put in the name of the

Montgomery’s daughter, Christie Leeann Montgomery, who was living at her parent’s home

with her 11-year-old daughter at the time the search warrant was executed. And, although

she had lived there for some three years and had title to the house, she professed to know

nothing about the basement or what was in it, swore that she had never asked about it, and

testified that she had no idea who had the keys to the four padlocks that were kept on the

basement door. Her sister Ella, also a resident, and the Montgomery’s wife gave similar

testimony. Although the likelihood that Montgomery’s wife and daughters were aware or

suspicious of Montgomery’s illegal activities does not make them participants in the

offense, their assertions do reflect on their own and Montgomery’s credibility.


       It is clear from the district court’s comments that the credibility of Montgomery and

his witnesses was subject to grave doubt. Under well-settled precedent, we are bound by

the district court’s credibility determintions, an issue that “is generally beyond the scope of

[appellate] review.” Schlup v. Delo, 513 U.S. 298, 330 (1995); see also United States v.


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United States v. Montgomery

Hilliard, 11 F.3d 618, 620 (6th Cir. 1993) (“In addressing sufficiency of the evidence, this

Court has long recognized that we do not weigh the evidence, consider the credibility of

witnesses or substitute our judgment for that of the [fact-finder].”)


                                      CONCLUSION


       For the reasons set out above, we AFFIRM the district court’s judgment.




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