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 (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.
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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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 191 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
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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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
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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. LabastidaSegura, “[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.
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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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
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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 FED. R. CRIM. 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.