DLD-193                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 11-1843
                                      ___________

                                   UNITED STATES

                                            v.

                            NATHANIEL MONTGOMERY
                                 a/k/a SHU SHU

                          NATHANIEL MONTGOMERY,
                                    Appellant
                      ____________________________________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                       (D.C. Criminal No. 2-02-cr-00172-020)
                      District Judge: Honorable Stewart Dalzell
                     ____________________________________

                  Submitted for Possible Summary Action Pursuant to
                       Third Circuit LAR 27.4 and I.O.P. 10.6
                                    May 19, 2011

                 Before: BARRY, FISHER and ROTH, Circuit Judges.

                                 (Filed: July 21, 2011 )
                                       _________

                                       OPINION
                                       _________

PER CURIAM

      Nathaniel Montgomery is serving a 280-month sentence imposed by the District

Court for his role in the Carter Organization, “a massive drug dealing operation spanning
the Commonwealth of Pennsylvania and Wilmington, Delaware.” United States v.

Montgomery, --- F. App’x ---, 2007 WL 3122255, *1 (3d Cir. Oct. 26, 2007).1 We have

already determined that Montgomery’s sentence is reasonable, see id. at *4, and, further,

that he is not entitled to a sentence reduction under 18 U.S.C. § 3582(c)(2), because

“[t]he more than 150 kilograms of powder cocaine for which he was responsible supports

his base offense level, wholly apart from any changes to the Crack Cocaine Guidelines

range.” United States v. Montgomery, 398 F. App’x 843, 845 (3d Cir. 2010).

       In Montgomery’s latest challenge to his sentence, he claimed that he should be

resentenced based on the instruction from Spears v. United States, 129 S. Ct. 840, 843

(2009) (per curiam), that “[a] sentencing judge who is given the power to reject the

disparity created by the crack-to-powder ration must also possess the power to apply a

different ratio which, in his judgment, corrects the disparity.” Montgomery invited the

District Court to resentence him using the 1:1 ratio found to be appropriate in United

States v. Gully, 619 F. Supp. 2d 633 (N.D. Iowa 2009). The District Court rejected

Montgomery’s invitation, concluding that “employing a different crack-to-powder ratio

would have no effect on Montgomery’s base offense level or his sentence.” We agree

with that conclusion and will summarily affirm the District Court. See I.O.P. 10.6


       1
        Specifically, Montgomery was convicted by the jury of conspiring to distribute
powder cocaine and crack cocaine. “At sentencing, the [District] Court determined that
he was responsible for distributing more than 1.5 kilograms of crack cocaine and,
separately, more than 150 kilograms of powder cocaine.” United States v. Montgomery,
398 F. App’x 843, 844 (3d Cir. 2010).


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