## F I L E D United States Court of Appeals Tenth Circuit 

### March 10, 2006 Elisabeth A. Shumaker Clerk of Court PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellant,

v. ROBERT WILLIAM MONTGOMERY, Defendant - Appellee. No. 04-4193

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 (P aul 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.1 The base offense level was 20. Two levels were ad ded 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 accept ance of responsibility. -2- Robert William Montgomery was charged in a one-coun t indictment with possession of three firearms and ammunition by a co nvicted felon in violation of 18 U.S.C. § 922(g)(1). The charges arose from an i nvestigation 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 4 6 to 57 months. The United States moved for a four level upward departure unde r USSG §5K2.1 because the death of Montgomery’s wife resulted from his unlawf ul 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 v iolence toward [her], culminating in an incident just hours before her su icide,” 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, fi nding Montgomery’s case fell “squarely outside of the ‘heartland’ of typica l cases involving a felon in possession of a firearm.” (Id . at 83.) Two days later, the Supreme Court decided Blakely v. Washington , 5422The government may appeal the district court’s imp osition 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 personal ly authorized this appeal. -3- U.S. 296 (2004). In light of Blakely , Montgomery moved for reconsideration of the district court’s decision to grant an upward de parture. Upon reconsideration, the district court presciently held Blakelyapplicable 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 se ntencing guidelines, but without additional fact-finding by the Court that might res ult 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 de cision 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-4-

Supreme Court held Blakelyapplied to the sentencing guidelines so that “[a]n y fact (other than a prior conviction) which is neces sary to support a sentence exceeding the maximum authorized by the facts estab lished by a plea of guilty or a jury verdict must be admitted by the defendant orproved to a jury beyond a reasonable doubt.” Id . at 756. As we stated in United States v. LabastidaSegura , “[w]ere that the only holding of Booker , this appeal would be at an end because it is clear that no Sixth Amendment violati on occurred–all operative sentencing facts were admitted.” 396 F.3d 1140, 11 42 (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 b ased 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 globa l remedy for the Sixth Amendment difficulties with th e Sentencing Guidelines, invalidating their mandatory application and instea d 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 Bookererror in this case by treating the sentencing guidelines, at least in part, as mandatory. United States v.3 Because both parties agree the harmless error stan dard applies, we need

not decide whether the government’s arguments to th e district court about the effect of Blakely on the federal sentencing guidelines were sufficien t to avoid plain error review. -5- 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 Gu idelines, must consult those Guidelines and take them into ac count 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. § 3 553(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] cal culation, the district court may impose a more severe or more lenient sentence as lo ng as the sentence is reasonable . . . .”). When non-constitutional Bookererror is at issue and the appellant raised the issue below, 3 we review whether the error was harmless by a prep onderance of the evidence. United States v. Glover , 413 F.3d 1206, 1210 (10th Cir. 2005). Harmless error is that which “‘did not affect the d istrict 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-6-

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 erroraffects 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 ar e confronted with the question whether the error was harmless to the government—th e 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 er ror was harmless. The record clearly indicates the district court would have imp osed 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 sen tenced at the bottom of the range). The initial order granting a n 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 imp osed. Conclusion Because the district court believed it was preclude d from departing upward from the guideline range, we REVERSE Montgomery’s s entence and REMAND for re-sentencing in light of Booker . Montgomery’s Motion for Finding of-7-

Frivolous Appeal and Award Just Damages is DENIED.