United States v. Montgomery

FILED
United States Court of Appeals
Tenth Circuit

December 30, 2008
PUBLISH
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 06-4300

ROBERT WILLIAM MONTGOMERY,

Defendant - Appellant.

Appeal from the United States District Court
for the District of Utah
(D.C. No. 2:03-CR-00801-TS)

Scott Keith Wilson, Assistant Federal Defender, Utah Federal Public Defender’s
Office (Steven B. Killpack, Utah Federal Public Defender, and D. Bruce Oliver of
D. Bruce Oliver, LLC, of Salt Lake City, Utah, with him on the brief), for
Defendant-Appellant.

Diana Hagen, Assistant United States Attorney (Brett L. Tolman, United States
Attorney, with her on the brief), District of Utah, for Plaintiff-Appellee.

Before TYMKOVICH, GORSUCH, and HOLMES, Circuit Judges.

HOLMES, Circuit Judge.
 Defendant-Appellant Robert William Montgomery pleaded guilty to one

count of possession of firearms and ammunition by a convicted felon in violation

of 18 U.S.C § 922(g)(1). The government appealed Mr. Montgomery’s original

sentence, and this Court reversed and remanded for resentencing. See United

States v. Montgomery, 439 F.3d 1260 (10th Cir. 2006). On remand, Mr.

Montgomery was resentenced to an identical prison term. Mr. Montgomery

appeals this sentence claiming that the district court erred in applying an upward

departure under United States Sentencing Guidelines Manual (“U.S.S.G.”) §

5K2.1. 1 Exercising jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. §

1
Two issues relating to the appropriateness of our decision to hear the
merits of Mr. Montgomery’s appeal bear mention, but they may be disposed of in
summary fashion. First, Mr. Montgomery originally appealed the sentence on
grounds that the district court allowed perjured testimony by a government
witness during his sentencing and failed to hold the witness in contempt. In its
answer brief, the government challenged Mr. Montgomery’s standing to raise this
contempt issue, and he conceded the point in his reply brief. In that same brief,
however, Mr. Montgomery for the first time raised the contention of error related
to the § 5K2.1 departure. See Aplt. Reply Br. at 1-14. Although the failure to
raise an argument in an opening brief generally constitutes a waiver, Stump v.
Gates, 211 F.3d 527, 533 (10th Cir. 2000), the government had the opportunity to
respond to the upward departure argument in a surreply and availed itself of it,
and Mr. Montgomery replied to that surreply. Thus, as the issue has been briefed
fully and argued by the parties, we exercise our discretion to ignore the waiver
and address this “strictly legal question the proper resolution of which is beyond
doubt.” See Franklin Sav. Corp. v. United States, 180 F.3d 1124, 1129 (10th Cir.
1999) (internal quotation marks omitted). Second, Mr. Montgomery’s counsel
appropriately alerted us to the fact that Mr. Montgomery “will likely have
completed his prison term before this Court can act on his appeal.” Aplt. Reply
Br. at 1 n.1. However, his counsel took the position that Mr. Montgomery’s
appeal would not be rendered moot by Mr. Montgomery’s release from prison
(continued...)

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3742, we affirm.

I. Background

The charges against Mr. Montgomery arose from an investigation into the

suicide of his wife, Nicole Cottam-Montgomery, which revealed that she had used

a firearm unlawfully possessed by Mr. Montgomery to kill herself. The revised

presentence report (“PSR”) calculated the total offense level as 19 and Mr.

Montgomery’s criminal history category as IV, resulting in a Guidelines range of

46 to 57 months.

1
(...continued)
because “[a] remand for resentencing could affect Mr. Montgomery’s unexpired
term of supervised release.” Id. The government does not challenge Mr.
Montgomery’s position on whether this appeal is moot. Nevertheless, “[b]efore
addressing the merits of an appeal, a court must be satisfied that it has
jurisdiction to entertain the appeal.” United States v. Vera-Flores, 496 F.3d 1177,
1180 (10th Cir. 2007). Our review of publicly accessible Bureau of Prisons
records suggests that Mr. Montgomery was released from prison on or about
December 14, 2007. See Federal Bureau of Prisons, Inmate Locator,
http://www.bop.gov/iloc2/LocateInmate.jsp (last visited Dec. 10, 2008). We need
not definitively opine on this factual issue, however. Assuming that Mr.
Montgomery has been released, as his counsel predicted, we conclude that his
sentencing appeal is not moot because Mr. Montgomery’s unexpired term of
supervised release potentially could be reduced if we were to render a ruling
favorable to him on his upward departure challenge. See Vera-Flores, 496 F.3d at
1180 (“A defendant in this situation [who is “still serving a term of supervised
release”] satisfies the Article III case or controversy requirement because the
defendant’s liberty is affected by ongoing obligations to comply with supervised
release conditions and restrictions.”); see also United States v. Westover, 435
F.3d 1273, 1277 (10th Cir. 2006) (noting that “practical impact” that resentencing
would “potentially shorten[] the [unexpired] term [of supervised release]” was
“sufficient to prevent this appeal from being moot”).

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 After Mr. Montgomery pleaded guilty, the government moved for a four-

level upward departure under U.S.S.G. § 5K2.1 2 because the death of Mr.

Montgomery’s wife resulted from his unlawful possession of firearms. Mr.

Montgomery filed an objection to the upward departure. The district court then

conducted a hearing on the government’s motion, at which several witnesses

testified. The district court granted the government’s motion, but it imposed only

a two-level upward departure under § 5K2.1. The district court found that Mr.

Montgomery contributed to his wife’s suicide by “engag[ing] in a pattern of

escalating violence toward [her]”; by threatening to take their son away from her;

and by “attempt[ing] to thwart [her] efforts to receive treatment for her apparent

depression.” Aplt. App. at 22-23. And the court found it significant that Mr.

Montgomery was aware that “his wife attempted suicide, just three weeks before”

her death. Id. at 22. The district court concluded that the upward departure was

justified because the facts and circumstances placed the case “squarely outside of

the ‘heartland’ of typical cases involving a felon in possession of a firearm.” Id.

at 24.

Two days later, the Supreme Court decided Blakely v. Washington, 542

U.S. 296 (2004). In light of Blakely, Mr. Montgomery moved for reconsideration

2
Although the government’s motion was filed in 2004, the challenged
application of § 5K2.1 by the district court did not take place until 2006, so we
refer to the 2006 version of the Guidelines.

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of the district court’s decision to grant an upward departure. Upon

reconsideration but before Mr. Montgomery had been sentenced, the district court

vacated its upward departure order and 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.” Aplee. App. at 77. The district court specifically noted that the facts

regarding the resultant death of Ms. Cottam-Montgomery were found improperly

and must be vacated. The district court soon thereafter sentenced Mr.

Montgomery to 57 months, the top of the Guidelines range without the two-level

upward departure, to be followed by 36 months of supervised release.

The government appealed the district court’s decision to vacate the upward

departure, and this Court reversed and remanded. We held that the district court

had committed nonconstitutional error under United States v. Booker, 543 U.S.

220 (2005), by treating the Guidelines, at least in part, as mandatory and that the

error was not harmless because “[t]he record clearly indicates the district court

would have imposed a higher sentence if it believed it had the discretion to do

so.” Montgomery, 439 F.3d at 1262-63.

Upon resentencing, the district court departed upward two levels pursuant

to § 5K2.1, which resulted in a total offense level of 21 and a Guidelines range of

57 to 71 months. Relying on the reasoning, legal authority, and factual basis set

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forth in its previous order granting upward departure, the district court then

reimposed its sentence of 57 months’ imprisonment—now at the bottom, rather

than the top, of the Guidelines range—to be followed by 36 months of supervised

release. Mr. Montgomery appeals.

II. Discussion

A. Standard of Review

Mr. Montgomery disputes whether the district court’s reliance on his wife’s

suicide was a permissible departure factor under § 5K2.1. Section 5K2.1

provides:

Death (Policy Statement)

If death resulted, the court may increase the sentence above the
authorized guideline range.

Loss of life does not automatically suggest a sentence at or near the
statutory maximum. The sentencing judge must give consideration to
matters that would normally distinguish among levels of homicide, such
as the defendant’s state of mind and the degree of planning or
preparation. Other appropriate factors are whether multiple deaths
resulted, and the means by which life was taken. The extent of the
increase should depend on the dangerousness of the defendant’s
conduct, the extent to which death or serious injury was intended or
knowingly risked, and the extent to which the offense level for the
offense of conviction, as determined by the other Chapter Two
guidelines, already reflects the risk of personal injury. For example, a
substantial increase may be appropriate if the death was intended or
knowingly risked or if the underlying offense was one for which base
offense levels do not reflect an allowance for the risk of personal
injury, such as fraud.

After Booker, this Court reviews sentences for reasonableness, as informed

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by the 18 U.S.C. § 3553(a) sentencing factors. Gall v. United States, 128 S. Ct.

586, 594 (2007); United States v. Munoz-Tello, 531 F.3d 1174, 1181 (10th Cir.

2008), petition for cert. filed, No. 08-6953 (U.S. Oct. 20, 2008). The Supreme

Court has clarified that we apply a deferential abuse of discretion standard within

this reasonableness review, and that this standard applies whether the sentence

imposed is inside or outside the Guidelines range. Gall, 128 S. Ct. at 597.

“When evaluating the district court’s interpretation and application of the

Sentencing Guidelines, we review legal questions de novo and factual findings for

clear error, giving due deference to the district court’s application of the

[G]uidelines to the facts.” Munoz-Tello, 531 F.3d at 1181 (internal quotation

marks omitted).

When a defendant challenges a district court’s upward departure, we review

pursuant to a four-part test:

(1) whether the factual circumstances supporting a departure are
permissible departure factors; (2) whether the departure factors relied
upon by the district court remove the defendant from the applicable
Guideline heartland thus warranting a departure; (3) whether the record
sufficiently supports the factual basis underlying the departure; and (4)
whether the degree of departure is reasonable. Although we apply a
“unitary abuse of discretion standard” to these four prongs, we have
specified that the degree of deference to the district court varies
depending on the essential nature of the question presented [on appeal.]
That is, if the question on appeal has the hue of a factual question, we
accord the district court greater deference, whereas we undertake
plenary review of questions that are in essence legal.

Id. at 1186 (citations and internal quotation marks omitted) (quoting United States

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v. Wolfe, 435 F.3d 1289, 1295 (10th Cir. 2006) (noting that this unitary standard

involves review to determine whether the district court’s discretion was guided by

erroneous legal conclusions and that whether a factor is a permissible ground for

departure is a legal conclusion)).

B. Upward Departure Under U.S.S.G. § 5K2.1

1. Scope of Policy Statement

Mr. Montgomery contends that the plain language of § 5K2.1 restricted the

district court to granting an upward departure only when the “death resulted”

from a homicide. Alternatively, he asserts that even if § 5K2.1 is not limited to

homicide deaths, it cannot be extended to include a death that occurs as the result

of suicide.

We reject this argument, as did the district court. The plain language of §

5K2.1 provides for an upward departure “[i]f death resulted.” There is no

indication that § 5K2.1 limits the word “death” to mean only deaths due to

homicide. The policy statement contains no explicit reference to suicide, nor

does the language of § 5K2.1 require that the victim be killed by the defendant or

by anyone else. 3 While the provision does instruct that “the sentencing judge

3
Cf. Jessie K. Liu, Victimhood, 71 Mo. L. Rev. 115, 145 (2006)
(tacitly recognizing that § 5K2.1 is not readily amenable to a cramped view of its
scope, in noting that although “the Guidelines specify that departures may be
warranted where death or physical injury ‘resulted,’” they “do not explicitly state
whether the person killed [or] injured . . . must have been a victim of the crime”).

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must give consideration to matters that would normally distinguish among levels

of homicide,” this directive is included within the context of a broad range of

factors that are listed to guide the court regarding both the propriety of a

departure and the extent of any departure that is granted. U.S.S.G. § 5K2.1. The

reference to “homicide” does not denote that the provision is limited to cases

involving homicide; rather, it indicates that the same factors that determine an

offender’s culpability in homicide cases—such as “state of mind and the degree of

planning or preparation”—must be considered by the district court and may be

relevant alongside factors such as “whether multiple deaths resulted” or “the

means by which life was taken” in determining whether an upward departure is

warranted under § 5K2.1. Although this Court is unaware of another case in

which § 5K2.1 was the basis for an upward departure when the death undisputedly

resulted from suicide, the plain language of § 5K2.1 does not restrict its

application solely to deaths by homicide.

Moreover, Mr. Montgomery’s narrow reading of § 5K2.1 is belied by the

courts’ application of it in various contexts. Upward departures under § 5K2.1

have been sanctioned in cases where the death resulted from criminal conduct that

could not be clearly deemed to have effected a homicide.

In United States v. Purchess, for example, a drug courier or “mule”

voluntarily swallowed drugs packaged into pellet form, intending to sell the drugs

for his own profit. 107 F.3d 1261, 1263 (7th Cir. 1997). When one or more

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pellets burst in his stomach he denied that he was ferrying drugs, refused medical

treatment, and died of a drug overdose. Id. at 1263-64. The defendant, an illegal

drug importer, argued that the courier caused his own death. The defendant did

not force the courier to swallow the drugs, to deny that he had done so, or to

refuse medical treatment. Id. at 1263-64, 1270.

Nevertheless, the Seventh Circuit upheld an upward departure under §

5K2.1, concluding that the defendant knowingly risked the courier’s death and

that the death resulted from the unusually dangerous circumstances arising from

the manner in which the drugs were packaged when bought from the defendant.

Id. at 1270-72; see United States v. Ihegworo, 959 F.2d 26, 29-30 (5th Cir. 1992)

(affirming § 5K2.1 departure when a drug user “died from ingesting the

extraordinarily pure heroin” that the defendant was convicted of possessing with

intent to distribute); see also United States v. Davis, 30 F.3d 613, 615-16 (5th Cir.

1994) (affirming an upward departure under § 5K2.1 where the traumatic event of

a robbery caused a gas station attendant to suffer a fatal brain aneurysm); cf.

United States v. Pacheco, 489 F.3d 40, 46-48 (1st Cir. 2007) (analogizing § 5K2.1

language and precedent to § 5K2.2 and upholding departure where victim’s

“significant physical injury resulted” from a polydrug overdose, and he had

purchased one of the drugs from defendant).

2. Application of § 5K2.1

Mr. Montgomery additionally asserts that an upward departure is improper

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because his wife’s death did not result from his crime of conviction. This

argument rests on two connected contentions: first, that there is an insufficient

relationship between Mr. Montgomery’s offense of being an unlawful felon in

possession of a firearm and Ms. Cottam-Montgomery’s suicide; and second, that

the basis for the district court’s upward departure was Mr. Montgomery’s

behavior toward his wife, which he asserts is unrelated to the crime of conviction.

The touchstone of the inquiry is whether it was reasonably foreseeable to

Mr. Montgomery that his criminal conduct could result in his wife’s death.

United States v. Fortier, 242 F.3d 1224, 1232-33 (10th Cir. 2001), superseded by

statute on other grounds, PROTECT Act of 2003, Pub. L. No. 108-21, 117 Stat.

650, 670-71. In Fortier, this Court affirmed the district court’s upward departure

under § 5K2.1 for deaths that were the product of the Oklahoma City bombing,

which were a reasonably foreseeable consequence of, although not directly caused

by, the defendant’s conduct. The defendant pleaded guilty to conspiring to

transport and transporting stolen firearms, making a false statement to the F.B.I.,

and misprision of a felony. Id. at 1226. On appeal, he argued that there was an

insufficient nexus between the Oklahoma City bombing and his admitted

wrongdoing to permit an upward departure.

We rejected that argument. Initially, we observed that there was “colorable

argument” that defendant’s “conduct bordered on recklessness” (i.e., involved

actual awareness of a risk and a decision to disregard it). Id. at 1232. But we

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concluded that irrespective of whether his conduct was reckless, defendant bore

“sufficient legal responsibility for the bombing to support an upward departure.”

Id. at 1232.

Several of the Guidelines relied upon by the district court
for the upward departure permit an increased sentence
where the specified harm “resulted” from the defendant’s
conduct. We have interpreted the words “resulted from”
in the Guidelines as permitting an increased sentence for
harms that were a “reasonably foreseeable” consequence
of a defendant’s conduct even where a defendant did not
directly cause the specified harm. Fortier well knew-in
great detail-McVeigh’s and Nichols’s plans to bomb the
Murrah Building. Fortier also knew the guns he sold for
McVeigh and Nichols were stolen as a “fund-raiser” to
offset expenses related to the bombing. Although the
government cannot directly trace any of the proceeds from
Fortier’s criminal activity, a reasonably foreseeable
consequence of giving McVeigh and Nichols $2000 of the
proceeds was to further the Oklahoma City bombing
conspiracy.

Fortier, 242 F.3d at 1232-33 (emphasis added) (citations and internal quotation

marks omitted). Because the defendant “should have known his sale of firearms had

the capacity to further the bombing of the Murrah Federal Building (an offense he

knew for certain would result in many deaths),” this Court affirmed the upward

departure. Id. at 1232 (internal quotation marks omitted).

Here, as in Fortier, the district court’s upward departure is supported by Mr.

Montgomery’s knowledge of the possible consequences of his unlawful actions. Mr.

Montgomery’s unlawful possession of firearms was a “link[] in the chain of events

leading up to” his wife’s suicide. See id. at 1233 n.5. As stated by the district court,

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“this is not simply a case of a felon in possession of a firearm whose wife committed

suicide using his illegal weapon.” Aplt. App. at 22. Rather, aggravating factors and

circumstances made the ultimate consequence of Mr. Montgomery’s behavior—his

wife’s death—reasonably foreseeable as resulting from his unlawful behavior.

Specifically, Mr. Montgomery’s escalating emotional and physical abuse of

his wife, his knowledge of her previous suicide attempt only three weeks prior to her

death, his reported attempt to prevent her from taking prescribed antidepressants, and

his threat to take their son away from Ms. Montgomery, all indicate that her suicide

by his weapon was reasonably foreseeable to Mr. Montgomery.

As noted by the district court, whether other individuals foresaw Ms. Cottam-

Montgomery’s act is not the pertinent issue. Mr. Montgomery’s “conduct was such

that he should have anticipated that a serious injury or death could result from his

conduct.” See Davis, 30 F.3d at 616. While Mr. Montgomery may not have known

his wife’s plans “in great detail,” as did the defendant in Fortier, Mr. Montgomery,

by way of his superior knowledge and unique perspective, reasonably could have

foreseen that his unlawful actions could result in his wife’s death.

Mr. Montgomery cites Fortier and appears to argue that unless he had actual

knowledge that his wife would commit suicide with one of the illegal firearms, the

suicide was not reasonably foreseeable to him. However, Fortier’s rationale

itself—which expressly did not turn on whether the defendant “was actually aware

of the risk but chose instead to ignore it,” 242 F.3d at 1232—renders this contention

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untenable.

Furthermore, Mr. Montgomery’s actual-knowledge contention is at odds with

other Tenth Circuit case law and the law in other circuits. In United States v.

Metzger, 233 F.3d 1226 (10th Cir. 2000), this Court reviewed an enhancement of a

robbery sentence pursuant to U.S.S.G. § 2B3.1(b)(3)(B) for causing serious bodily

injury to a victim. After robbing the teller at a credit union, the defendant exited the

bank and left the scene on a bicycle. Id. at 1227. A uniformed officer who had been

transacting business at the bank was told that the perpetrator was in a blue vehicle

in the parking lot. The officer saw a blue car in the parking lot and shot the driver,

an innocent bystander, as she attempted to drive away. Id. We upheld the district

court’s enhancement of the sentence under § 2B3.1(b)(3)(B) due to the driver’s

injury. We concluded that the defendant was responsible for the harm which

“resulted from” his acts and, as with § 5K2.1 in Fortier, “resulted from” means

“harms that were a ‘reasonably foreseeable’ consequence of a defendant’s conduct.”

Id.

In Metzger, the relevant question was not whether the defendant “could have

expected events to unfold in precisely the way they did.” Id. Instead, we examined

whether it was reasonably foreseeable, given the inherently dangerous nature of a

bank robbery, that a bystander might be seriously injured during the flight or

apprehension of the perpetrator. Id. at 1227-28. Likewise in this case, given the

inherently dangerous nature of Mr. Montgomery’s actions regarding his wife, it was

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reasonably foreseeable that his unlawful possession of firearms could result in Ms.

Cottam-Montgomery’s death.

Some other circuits have adopted a similar view to the one we articulated in

Metzger. See United States v. Diaz, 285 F.3d 92, 100-01 (1st Cir. 2002)

(determining that defendant brandishing a firearm at a crowd of bystanders,

prompting police to shoot a plainclothes officer who refused to drop his weapon, was

an indirect cause of the officer’s death and within the scope of § 5K2.1, as

“[u]nintended consequences are often the result of reckless behavior, and while

[appellant] could not have anticipated the particular sequence of events, appellant

should have foreseen the possibility of serious harm”); see also United States v.

Scheetz, 293 F.3d 175, 189-92 (4th Cir. 2002) (affirming a § 5K2.1 departure and

noting that although the armed defendant who accompanied codefendants to collect

a debt was not a direct cause of an unrelated third party’s death and perhaps “could

not have anticipated the particular sequence of events,” he “should have foreseen the

possibility of serious physical harm to another as a result of his actions”); cf. United

States v. Cardena-Garcia, 362 F.3d 663, 665-66 (10th Cir. 2004) (“Resulting in

death and causing death are not equivalent[]. . . . A sufficient nexus would exist

[under § 2L1.1(b)(6), which requires an enhancement if death resulted] if the death

or injury was reasonably foreseeable and [the defendants’] conduct was a

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contributing factor.”). 4 Accordingly, we conclude that Mr. Montgomery’s actual-

knowledge contention is without merit.

Mr. Montgomery relies on United States v. Allen, 488 F.3d 1244 (10th Cir.

2007), to support his argument that the district court improperly relied on conduct

unrelated to the underlying offense in applying the upward departure. In Allen, this

Court noted that “when a § 5K2.0 departure is based on acts of misconduct not

resulting in conviction those acts must still relate meaningfully to the offense of

conviction.” 488 F.3d at 1257 (internal quotation marks omitted).

In Allen, however, we held that a departure under the provision was

unavailable because the district court attempted to base an increased sentence for a

drug conviction on entirely non-drug related conduct. Id. Unlike in Allen, and

contrary to Mr. Montgomery’s claims, here the district court granted an upward

4
Commenting “in passing” in a case involving an upward departure
under the analogous Guidelines provision relating to conduct resulting in
significant physical injuries, the First Circuit observed:

[T]he defendant here engaged in the commercial trade of potent
substances [i.e., the animal tranquillizer, ketamine] that he must
have known could have dire consequences in a myriad of
circumstances. . . . Consequently, while he could not have
anticipated the exact sequence of events that unfolded here, he
could (and should) have foreseen the possibility of the kind of
serious harm that in fact occurred.

Pacheco, 489 F.3d at 48 n.5. As noted in text, similar comments apply with full
force to Mr. Montgomery.

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departure based on the offense conduct itself and not on account of Mr.

Montgomery’s treatment of his wife. Rather, the district court found that Mr.

Montgomery’s abuse, knowledge of her previous suicide attempt, threat to take away

their son from her, and other “aggravating factors and circumstances” created, in

their totality, an inherently dangerous situation rendering it reasonably foreseeable

to Mr. Montgomery “that Ms. Cottam-Montgomery might suffer serious injury or

death as a result of his illegal possession of weapons in his home.” Aplt. App. at 22-

23 (emphasis added).

Therefore, the upward departure was not based on Mr. Montgomery’s conduct

toward his spouse; it was based upon a determination that Mr. Montgomery’s illegal

possession of firearms was a link in the chain of events which resulted in his wife’s

death. See Fortier, 242 F.3d at 1233 n.5; Metzger, 233 F.3d at 1227-28. These

undisputed “aggravating factors,” coupled with Mr. Montgomery’s action in

possessing firearms under the circumstances, made it reasonably foreseeable to him

that such harm could result.

III. Conclusion

Because under the specific circumstances of this case, the district court did

not err in deciding that Ms. Cottam-Montgomery’s suicide resulted from Mr.

Montgomery’s unlawful possession of firearms, we hold that its upward departure

under U.S.S.G. § 5K2.1 was permissible. Accordingly, we AFFIRM the court’s

sentence.

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