F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
March 10, 2006
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
v. No. 04-4193
ROBERT WILLIAM
MONTGOMERY,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Utah
(D.C. No. 2:03-CR-801-01-TS)
Submitted on the briefs:
Wayne T. Dance, Assistant United States Attorney (Paul M. Warner, United
States Attorney, with him on the briefs), Salt Lake City, Utah, for Plaintiff -
Appellant.
D. Bruce Oliver, D. Bruce Oliver, L.L.C., Salt Lake City, Utah, for Defendant -
Appellee.
Before KELLY, O’BRIEN and TYMKOVICH, Circuit Judges.
O’BRIEN, Circuit Judge.
Robert William Montgomery was charged in a one-count indictment with
possession of three firearms and ammunition by a convicted felon in violation of
18 U.S.C. § 922(g)(1). The charges arose from an investigation into his wife’s
suicide. Montgomery pled guilty to the charge. The revised presentence report
(PSR) calculated the total offense level as 19 1 and Montgomery’s criminal history
category as IV, resulting in a guideline range of 46 to 57 months. The United
States moved for a four level upward departure under USSG §5K2.1 because the
death of Montgomery’s wife resulted from his unlawful possession of firearms.
After a hearing, the district court found Montgomery contributed to his wife’s
suicide by “engag[ing] in a pattern of escalating violence toward [her],
culminating in an incident just hours before her suicide,” threatening to take the
couple’s son away from her and “thwart[ing] [her] efforts to receive treatment
for her apparent depression . . . .” (Appellant’s App. Vol. I at 81-82.)
Consequently, on June 22, 2004, the district court granted the government’s
motion and imposed a two-level upward departure, finding Montgomery’s case
fell “squarely outside of the ‘heartland’ of typical cases involving a felon in
possession of a firearm.” (Id. at 83.)
Two days later, the Supreme Court decided Blakely v. Washington, 542
1
The base offense level was 20. Two levels were added under USSG
§2K2.1(b)(1)(A) because the offense involved three to seven firearms, and three
levels were subtracted under USSG §3E1.1 for acceptance of responsibility.
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U.S. 296 (2004). In light of Blakely, Montgomery moved for reconsideration of
the district court’s decision to grant an upward departure. Upon reconsideration,
the district court presciently held Blakely applicable to the federal sentencing
guidelines. United States v. Montgomery, 324 F.Supp.2d 1266, 1269 (D. Utah
2004). Relying on Blakely and Apprendi v. New Jersey, 530 U.S. 466 (2000), the
district court decided to “continue to apply the sentencing guidelines, but without
additional fact-finding by the Court that might result in an upward enhancement
or departure that would result in a sentence above that which would otherwise
apply under the guidelines, absent those findings.” Montgomery, 324 F.Supp.2d
at 1271. Consequently, it vacated the upward departure order, concluding it was a
violation of Montgomery’s Sixth Amendment rights. Id. at 1272-73. The district
court sentenced Montgomery to 57 months, the top of the guideline range.
The government appeals from the district court’s decision to vacate the
upward departure. 2 Exercising jurisdiction under 18 U.S.C. § 3742(b) and 28
U.S.C. § 1291, we REVERSE and REMAND.
Discussion
In United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), the
2
The government may appeal the district court’s imposition of an otherwise
final sentence for, inter alia, “an incorrect application of the sentencing
guidelines.” 18 U.S.C.§ 3742(b)(2). However, the government must obtain “the
personal approval of . . . the Solicitor General . . . .” Id.; see 28 C.F.R. § 0.20(b).
The Solicitor General of the United States personally authorized this appeal.
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Supreme Court held Blakely applied to the sentencing guidelines so that “[a]ny
fact (other than a prior conviction) which is necessary to support a sentence
exceeding the maximum authorized by the facts established by a plea of guilty or
a jury verdict must be admitted by the defendant or proved to a jury beyond a
reasonable doubt.” Id. at 756. As we stated in United States v. Labastida-
Segura, “[w]ere that the only holding of Booker, this appeal would be at an end
because it is clear that no Sixth Amendment violation occurred–all operative
sentencing facts were admitted.” 396 F.3d 1140, 1142 (10th Cir. 2005).
In this case, without the benefit of Booker, the district court reasonably
anticipated that the remedy to the Sixth Amendment problem would be to remove
the offending practice: enhancement of a sentence based on facts not established
by a plea of guilty or a jury verdict. Montgomery, 324 F.Supp.2d at 1271.
Despite the straightforward appeal of this approach, however, the Supreme Court
did not adopt it in Booker. Rather, “the Supreme Court . . . imposed a global
remedy for the Sixth Amendment difficulties with the Sentencing Guidelines,
invalidating their mandatory application and instead requiring district courts to
consult them in an advisory fashion.” Labastida-Segura, 396 F.3d at 1142 (citing
Booker, 125 S. Ct. at 756).
The district court committed non-constitutional Booker error in this case by
treating the sentencing guidelines, at least in part, as mandatory. United States v.
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Gonzalez-Huerta, 403 F.3d 727, 731-32 (10th Cir.), cert. denied, 126 S.Ct. 495
(2005). Under Booker, “district courts, while not bound to apply the Guidelines,
must consult those Guidelines and take them into account when sentencing.” 125
S. Ct. at 767. The district courts still maintain the ability to depart downward or
upward from the sentencing guideline range, so long as the sentence imposed is
reasonable in light of the factors in 18 U.S.C. § 3553(a). Booker, 125 S. Ct. at
750, 766-67; United States v. Morales-Chaires, 430 F.3d 1124, 1128 (10th Cir.
2005); see also United States v. Crawford, 407 F.3d 1174, 1179 (11th Cir. 2005)
(“After it has made [the sentencing guidelines] calculation, the district court may
impose a more severe or more lenient sentence as long as the sentence is
reasonable . . . .”).
When non-constitutional Booker error is at issue and the appellant raised
the issue below, 3 we review whether the error was harmless by a preponderance of
the evidence. United States v. Glover, 413 F.3d 1206, 1210 (10th Cir. 2005).
Harmless error is that which “‘did not affect the district court’s selection of the
sentence imposed.’” Labastida-Segura, 396 F.3d at 1143 (quoting Williams v.
United States, 503 U.S. 193, 203 (1992)). The burden of proving the error is
3
Because both parties agree the harmless error standard applies, we need
not decide whether the government’s arguments to the district court about the
effect of Blakely on the federal sentencing guidelines were sufficient to avoid
plain error review.
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harmless is on “the beneficiary of the error.” Chapman v. California, 386 U.S.
18, 24 (1967); United States v. Lang, 405 F.3d 1060, 1065 (10th Cir. 2005).
Ordinarily, we are concerned with whether the error affects the substantial
rights of a defendant. See F ED . R. C RIM . P. 52(a); United States v. Olano, 507
U.S. 725, 734 (1993). In this case, however, we are confronted with the question
whether the error was harmless to the government—the appellant. United States
v. Davila, 418 F.3d 906, 909 (8th Cir. 2005); United States v. Bruce, 413 F.3d
784, 785 (8th Cir. 2005); United States v. Barnett, 410 F.3d 1048, 1052 (8th Cir.
2005). Here, Montgomery has failed to prove the error was harmless. The record
clearly indicates the district court would have imposed a higher sentence if it
believed it had the discretion to do so. See Labastida-Segura, 396 F.3d at 1143
(holding Booker error was not harmless where the district court sentenced at the
bottom of the range). The initial order granting an upward departure, coupled
with the district court’s eventual sentence at the top of the guideline range, leads
us to conclude the error was not harmless, i.e., the court’s non-constitutional
Booker error did affect its selection of the sentence imposed.
Conclusion
Because the district court believed it was precluded from departing upward
from the guideline range, we REVERSE Montgomery’s sentence and REMAND
for re-sentencing in light of Booker. Montgomery’s Motion for Finding of
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Frivolous Appeal and Award Just Damages is DENIED.
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