U.S. v. Montgomery

• Decision Date: 30 December 2008
• Docket Number: No. 06-4300.,06-4300.
• Citation: 550 F.3d 1229
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert William MONTGOMERY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

550 F.3d 1229

UNITED STATES of America, Plaintiff-Appellee, v. Robert William MONTGOMERY, Defendant-Appellant.

No. 06-4300.

United States Court of Appeals, Tenth Circuit.

December 30, 2008.

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, UT, 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. § 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.

After Mr. Montgomery pleaded guilty, the government moved for a four-level upward departure under U.S.S.G. § 5K2.1² 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, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). In light of Blakely, Mr. Montgomery moved for reconsideration 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, 125 S.Ct. 738, 160 L.Ed.2d 621 (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 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 by the 18 U.S.C. § 3553(a) sentencing factors. Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 594, 169 L.Ed.2d 445 (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 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 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...