                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 13a0447n.06

                                            No. 12-6031
                                                                                          FILED
                             UNITED STATES COURT OF APPEALS                         May 03, 2013
                                  FOR THE SIXTH CIRCUIT                        DEBORAH S. HUNT, Clerk

UNITED STATES OF AMERICA,                             )
                                                      )
       Plaintiff-Appellee,                            )
                                                      )       ON APPEAL FROM THE
v.                                                    )       UNITED STATES DISTRICT
                                                      )       COURT FOR THE WESTERN
DEMARIO MONTAGUE,                                     )       DISTRICT OF TENNESSEE
                                                      )
       Defendant-Appellant.                           )
                                                      )


       BEFORE: MARTIN and SUTTON, Circuit Judges; ADAMS, District Judge.*


       PER CURIAM. Demario Montague, who is represented by counsel, appeals the sentence

imposed on remand following his conviction of being a felon in possession of a firearm.

       A jury convicted Montague of being a felon in possession of a firearm in 2008. He was

acquitted of knowingly possessing a stolen firearm. The evidence at trial showed that Montague was

a passenger in the back seat of a car stopped by the police. He was wearing a white bandana over

his face. There had been several robberies in the area by a person wearing a white bandana. The

police observed Montague reaching down between his feet. When Montague was removed from the

car, a gun was discovered on the floor in front of his seat. We affirmed Montague’s conviction on

appeal, but concluded that the district court had committed a procedural error in sentencing when

the court failed to recognize that it had the authority to vary from the advisory sentencing guidelines

       *
        The Honorable John R. Adams, United States District Judge for the Northern District of
Ohio, sitting by designation.
No. 12-6031
United States v. Montague

on policy grounds concerning an enhancement to the offense level because the firearm in question

was stolen. The case was remanded for resentencing.

       Montague’s advisory sentencing guidelines range was calculated in his presentence report

as 110 to 120 months of imprisonment. At his resentencing hearing, the district court sentenced

Montague to 110 months of imprisonment, the same sentence the court originally imposed.

Montague now argues that the sentence is procedurally unreasonable because the district court relied

on a clearly erroneous factual finding that he had not accepted responsibility. Montague also argues

that the sentence is substantively unreasonable because the court gave undue weight to his youthful

criminal conduct.

       We review the procedural and substantive reasonableness of a sentence imposed in a criminal

case for an abuse of discretion. United States v. Bolds, 511 F.3d 568, 578 (6th Cir. 2007). A

sentence within the guidelines range is presumptively reasonable. United States v. Vonner, 516 F.3d

382, 389 (6th Cir. 2008) (en banc).

       A sentence may be found to be procedurally unreasonable where it is based on a clearly

erroneous factual finding. Gall v. United States, 552 U.S. 38, 51 (2007). Montague argues that the

district court made a clearly erroneous factual finding when it found that he has not accepted

responsibility for his conviction. A review of the record reveals no clear error. The record shows

that Montague has convinced his family of his innocence, as both his mother and aunt made

statements indicating that Montague was only in this position because he accepted a ride from the

wrong people on the day of his arrest.



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No. 12-6031
United States v. Montague

       Montague also argues that his sentence is substantively unreasonable because the district

court gave unreasonable weight to his youthful criminal conduct. The district court discussed the

authority Montague cited for the proposition that juveniles should be held less responsible for their

criminal conduct than adults, but distinguished the authority because Montague had not been

sentenced to death or life without parole. In fact, the presentence report shows that Montague

received seven months in juvenile detention for shooting two people when he was fifteen.

Montague’s wish for a more lenient sentence is insufficient to disturb the judgment of the district

court. See United States v. Trejo-Martinez, 481 F.3d 409, 413 (6th Cir. 2007).

       The district court’s judgment is affirmed.




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