     Case: 09-50809       Document: 00512391472         Page: 1     Date Filed: 09/30/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        September 30, 2013

                                       No. 09-50809                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee,
v.

RICHARD MONTGOMERY,

                                                  Defendant - Appellant.



                   Appeal from the United States District Court
                        for the Western District of Texas
                                  (5:08-CR-387)


Before KING, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
       We previously granted the United States’ motion to vacate Richard
Montgomery’s conviction and sentence, and remanded the case to the district
court. Montgomery filed a motion to recall the mandate, which we denied on the
grounds that no mandate was issued.                    Montgomery then moved for
reconsideration, correctly pointing out that a mandate was issued. Accordingly,
we GRANT Montgomery’s motion for reconsideration. After reconsidering, for



       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 09-50809

the reasons explained below, we DENY Montgomery’s motion to recall the mandate.
                                        I.
      Pursuant to a plea agreement, Montgomery pleaded guilty on June 18,
2008, to an information charging him with bank robbery, in violation of 18
U.S.C. § 2113(a) and (d), and brandishing a firearm during a crime of violence,
in violation of 18 U.S.C. § 924(c)(1). The district court sentenced Montgomery
to 262 months in prison, applying a career-offender enhancement under U.S.S.G.
§ 4B1.1. On appeal, Montgomery argued that the United States had agreed in
the plea agreement to recommend the application of U.S.S.G. § 2B3.1, which
would have resulted in a lower Sentencing Guidelines range. Montgomery
argued that the United States failed to make that recommendation and therefore
urged us to vacate his convictions and permit him to withdraw his guilty pleas.
       The United States then moved to vacate Montgomery’s convictions and
sentence because of the dispute regarding the United States’ obligation under
the plea agreement to recommend the application of § 2B3.1. The United States
also urged us to permit Montgomery to withdraw his guilty pleas. Montgomery’s
counsel did not oppose the motion. On July 26, 2011, we granted the motion,
and remanded the case to the district court. The judgment was issued as a
mandate. More than two years later, on August 19, 2013, Montgomery moved
to recall the mandate, arguing that he is entitled to a final determination on the
direct appeal that followed his June 18, 2008, conviction.
                                        II.
      Once issued, a mandate will not be recalled except to prevent injustice.
5TH CIR. R. 47.5; see United States v. Tolliver, 116 F.3d 120, 123 (5th Cir. 1997).
Here, on direct appeal, Montgomery sought vacatur of his convictions and
sentence on the grounds that the United States failed to perform under the plea
agreement. In its motion to vacate the convictions and sentence, the United
States recognized this dispute, and requested that we do precisely what

                                        2
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                               No. 09-50809

Montgomery sought: vacate his convictions and sentence and remand the case
to the district court. The mandate was issued, and the case proceeded in the
district court. Although we GRANT Montgomery’s motion for reconsideration,
because we conclude that recalling the mandate is not necessary to prevent
injustice, we DENY Montgomery’s motion to recall the mandate.




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