                                                  NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                             _______________

                                 No. 09-3320
                               _______________

                        UNITED STATES OF AMERICA

                                       v.

                          GEORGE MONTGOMERY,
                            also known as BUMP

                              George Montgomery,

                                         Appellant
                               _______________

                 On Appeal from the United States District Court
                    for the Western District of Pennsylvania
                    (D.C. Criminal No. 3-06-cr-00033-001)
                      District Judge: Hon. Kim R. Gibson
                                _______________

                 Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 June 21, 2011

            BEFORE: BARRY, AMBRO and COWEN , Circuit Judges

                              (Filed July 7, 2011 )
                               _______________

                                  OPINION
                               _______________


COWEN, Circuit Judge.
       George Montgomery appeals from the order by the United States District Court for

the Western District of Pennsylvania dismissing his motion to vacate, set aside, or correct

his federal criminal sentence filed pursuant to 28 U.S.C. § 2255. We will affirm.

                                              I.

       On March 1, 2007, Montgomery entered a guilty plea to one count of possession

with the intent to distribute fifty grams or more of cocaine base in violation of 21 U.S.C.

§§ 841(a)(1) and 841(b)(1)(A)(iii). Montgomery‘s plea agreement contained a provision

in which he waived his right to take a direct appeal or to file a motion under § 2255.

       A presentence report was submitted to the Court on May 4, 2007. It determined

that Montgomery qualified as a career offender under U.S.S.G. § 4B1.1, which requires

two or more convictions for either a ―controlled substance offense‖ or a ―crime of

violence.‖ Two prior convictions were expressly identified in support of this

classification: (1) a 2006 Pennsylvania state court conviction on the charge of

manufacturing, delivering, and possessing with the intent to deliver a controlled

substance; and (2) a 2001 Pennsylvania state court conviction for ―Homicide by

Vehicle/Involuntary Manslaughter.‖ (PSR ¶ 22.) The report went on to list several other

prior criminal convictions, including a 2006 Pennsylvania conviction for resisting arrest.

The report ultimately calculated an adjusted total offense level of 34, a criminal history

category of VI, and a resulting Guideline range of 262 to 327 months.

       At a sentencing hearing conducted on June 4, 2008, the District Court accepted the

presentence report‘s classification of Montgomery as a career offender. It then sentenced


                                              2
him to a term of imprisonment of 262 months. Montgomery filed a notice of appeal on

June 19, 2008, and, on February 17, 2009, we granted the government‘s motion to enforce

the appellate waiver.

         Montgomery then filed a pro se motion under § 2255 on June 8, 2009. On June

18, 2009, the District Court dismissed his motion, finding, inter alia, that: (1) ―the

Defendant was correctly classified as a career offender under U.S.S.G. §§ 4B1.1, 4B1.2

because the fact that although the Defendant‘s previous plea of guilty for vehicular

homicide may not qualify as a predicate offense for career offender status, the

Defendant‘s simultaneous plea to involuntary manslaughter in the same judgment in the

Court of Common Plea of Allegheny County is a proper predicate offense of a ‗crime of

violence‘ for career offender status;‖ and (2) Montgomery‘s corresponding claims of

ineffective assistance of counsel with respect to his classification as a career offender

were without merit. (SA38 (citations omitted).)

       A notice of appeal was filed on August 6, 2009. On January 12, 2010, this Court

remanded for a ruling on whether a certificate of appealability should be issued. The

District Court refused to grant a certificate in an order entered on January 26, 2010. On

June 17, 2010, we granted a certificate of appealability as to the following issues:

       (1) whether appellant‘s waiver of his right to collaterally attack his sentence
       and conviction was knowing and voluntary and, if so, whether an ―error
       amounting to a miscarriage of justice . . . invalidate[s] the waiver,‖ United
       States v. Khattak, 273 F.3d 557, 562 (3d Cir. 2001); see also United States
       v. Mabry, 536 F.3d 231 (3d Cir. 2008); United States v. Shedrick, 493 F.3d
       292, 297-98 (3d Cir. 2007); (2) whether the Petitioner‘s claim that the
       District Court misapplied the Sentencing Guidelines is cognizable, see
       United States v. Cepero, 224 F.3d 256, 267 (3d Cir. 2000) (en banc), and, if
                                              3
       so, whether cause and prejudice exist to excuse the Petitioner‘s failure to
       raise the claim on direct appeal, see Lines v. Larkins, 208 F.3d 153, 166
       n.20 (3rd Cir. 2000); and (3) whether the Petitioner‘s attorney rendered
       ineffective assistance of counsel by failing to argue at sentencing or on
       direct appeal that the Petitioner did not qualify for ―career offender‖ status
       under U.S.S.G. § 4B1.1(a), see Strickland v. Washington¸466 U.S. 668
       (1984); see also Begay v. United States, 553 U.S. 137 (2008); United States
       v. Johnson, 587 F.3d 203 (3d Cir. 2009). . . .

(A6-A7.)

                                             II.

       Based on the certificate of appealability,1 the parties raise a number of issues in

this appeal.2 However, we conclude that, even setting aside his homicide and

manslaughter convictions, Montgomery clearly had at least two qualifying convictions.

       In his District Court filings and in the opening appellate brief filed by counsel,

Montgomery never challenged the characterization of his 2006 conviction on the charge

of manufacturing, delivering, and possessing with the intent to deliver a controlled

substance as a ―controlled substance offense.‖ We agree that his prior conviction

constituted a ―controlled substance offense‖ under U.S.S.G. § 4B1.2(b). In turn, the

Guidelines define a ―crime of violence‖ as ―any offense under federal or state law,

punishable by imprisonment for a term exceeding one year, that – (1) has as an element

the use, attempted use, or threatened use of physical force against the person of another,

or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or


1
   The District Court possessed subject matter jurisdiction over the underlying criminal
prosecution pursuant to 18 U.S.C. § 3231 and over the motion to vacate pursuant to §
2255. We have appellate jurisdiction under 28 U.S.C. §§ 1291 and 2253.
2
  In addition to the assertions raised by counsel, we have also considered the arguments
                                              4
otherwise involves conduct that presents a serious potential risk of physical injury to

another.‖ U.S.S.G. § 4B1.2(a). In United States v. Stinson, 592 F.3d 460 (3d Cir.), cert.

denied, 131 S. Ct. 114 (2010), we held that the Pennsylvania offense of resisting arrest

constitutes a ―crime of violence,‖ id. at 463-67. In fact, Montgomery acknowledged in

his opening appellate brief that this Court recently held that ―all resisting arrests are

crimes of violence.‖ (Appellant‘s Brief at 27 (citing Stinson).) Because it is uncontested

that he was convicted in a Pennsylvania court on a charge of resisting arrest, the District

Court committed no reversible error by concluding that Montgomery was a career

offender. Montgomery‘s related claim of ineffective assistance of counsel must likewise

be rejected as without merit.

       Because he was a career offender, Montgomery‘s classification—and his

attorney‘s failure to object to his classification—did not give rise to any ―‗miscarriage of

justice‘‖ invalidating Montgomery‘s waiver of his right to collaterally challenge his

sentence. (A6 (citations omitted).) Accordingly, we will enforce this waiver and will

affirm the District Court‘s dismissal of Montgomery‘s § 2255 motion.

                                              III.

       For the foregoing reasons, we will affirm the order of the District Court.




contained in Montgomery‘s pro se reply brief.
                                               5
