This order and judgment is not binding precedent except under the *

doctrines of law of the case, res judicata and collateral estoppel. It may be cited,

however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th

Cir. R. 32.1.

 After examining the briefs and the appellate record, this three-judge **

panel has determined unanimously that oral argument would not be of material

assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th

Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.

F I LED

United States Court of Appeals

Tenth Circuit

March 16, 2007

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 06-4292

v. (D. of Utah)

ROBERT W. MONTGOMERY,

Defendant-Appellant.

(D.C. Nos. 2:05-CV-1049-TS and 

2:03-CR-801-TS)

ORDER AND JUDGMENT

*

Before HENRY, TYMKOVICH, and HOLMES, Circuit Judges. 

**

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 which revealed that she used one of the firearms to kill herself.
-2-

After Montgomery pleaded guilty, the United States at sentencing moved

for a four-level upward departure under United States Sentencing Guideline

§5K2.1 because Montgomery’s wife’s death resulted from his unlawful possession

of firearms. Several witnesses testified at the June 10, 2004 hearing on the

government’s motion, and based on that testimony the district court found

Montgomery contributed to his wife’s suicide because he treated her violently and

interfered with her treatment for depression. Consequently, the district court

granted the government’s motion and imposed a two-level upward departure. 

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

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

the district court’s decision to grant an upward departure. 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.” United States v. Montgomery, 324 F. Supp. 2d

1266, 1271 (D. Utah 2004). The court specifically noted that the facts regarding

Montgomery’s treatment of his wife “were improperly found by this Court and

must be vacated.” Id. at 1272. Accordingly, the court vacated the upward

departure order and sentenced Montgomery to 57 months, the top of the

Guidelines range. Id. at 1272–73. 
-3-

Both Montgomery and the United States appealed the sentence. 

Montgomery’s appeal was dismissed on his own motion on June 27, 2005. In the

United States’ appeal, we reversed Montgomery’s sentence and remanded for resentencing because the district court had concluded that Blakely precluded it from

departing upward from the Guidelines range. United States v. Montgomery, 439

F.3d 1260, 1263 (10th Cir. 2006). To the contrary, we noted under United States

v. Booker, 543 U.S. 220 (2005), that district courts retain discretion to depart

upward or downward from the Guidelines range, subject to review for

reasonableness based on the factors in 18 U.S.C. § 3553(a). Montgomery, 439

F.3d at 1262. On remand in November 2006, Montgomery was again sentenced to

57 months. 

Prior to remand, Montgomery made several filings in the district court. In

August and December 2005, while his case was on appeal, Montgomery submitted

a series of letters accusing witnesses at the June 10, 2004 hearing of perjury and

requesting that the court compel a third party to release his deceased wife’s

medical records to him. The court construed Montgomery’s letters as an attack

on his sentence under 28 U.S.C. § 2255 and opened a civil case for Montgomery

to pursue the matter. The court notified Montgomery of its action under our rule

that a district court may not construe a pro se litigant’s motion as a request for

relief under § 2255 without warning the litigant about the consequences and

giving the litigant an opportunity to withdraw or amend the motion. See United
 The court additionally denied Montgomery’s request to order the release 1

of his wife’s medical records. The court noted that the records were irrelevant to

any attack on Montgomery’s sentence since her death was not a factor considered

in re-sentencing. The court furthermore referred to indications at Montgomery’s

2006 re-sentencing that Montgomery could obtain the requested medical records

directly from the hospital. In fact, Montgomery’s September 1, 2006 “Request

for a Contempt Order” references various medical records, and Montgomery does

not renew his request regarding medical records on appeal. 

-4-

States v. Martin, 357 F.3d 1198, 1199 (10th Cir. 2004). Montgomery responded

by withdrawing his construed § 2255 motion and requesting that the civil case be

dismissed. Pursuant to Montgomery’s request, the district court dismissed the

civil case. 

1

This is an appeal from that civil case, No. 2:05-cv-01049-TS. We note that

Montgomery is also pursing an appeal from his sentence in criminal case No.

2:03-cr-801-TS in this court. See United States v. Montgomery, No. 06-4300

(10th Cir. appeal docketed Dec. 7, 2006). The single issue Montgomery raises in

this civil appeal concerns the district court’s refusal to hold a witness in contempt

for perjury. Because that issue is more properly before the court in the criminal

appeal, we dismiss the instant appeal.

The issues Montgomery raises in this appeal developed in the context of his

criminal proceeding. The testimony Montgomery alleges was perjured was

offered at the June 10, 2004 hearing in his criminal case. Although Montgomery

filed his initial pro se request for a contempt order under both his civil and

criminal case numbers, his counsel filed a similar motion under the criminal case
 In its order dismissing the civil case, the court reiterated that it had 2

disposed of the motion for contempt at the re-sentencing hearing.

-5-

number on November 3, 2006. The court denied the motion at Montgomery’s

criminal re-sentencing hearing on November 6, 2006. Montgomery’s Docketing 2

Statement in the criminal appeal, filed on March 6, 2007, refers to Montgomery’s

allegations of perjury and the district court’s ruling on the motion for contempt. 

Therefore, Montgomery may properly raise issues surrounding the motion for

contempt in his criminal appeal.

Montgomery’s filings in the instant appeal raise no issues with respect to

his civil case. Montgomery’s request for a Certificate of Appealability is

therefore DENIED, and this appeal is DISMISSED.

Entered for the Court

Timothy M. Tymkovich 

Circuit Judge