United States v. Montgomery, 10th Cir. (2007)

F I L E D
United States Court of Appeals

Tenth Circuit
UNITED STATES CO URT O F APPEALS
TENTH CIRCUIT
March 16, 2007

Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,

Plaintiff-Appellee,
v.
No. 06-4292
(D. of Utah)
R OBER T W. M O N TG O ME RY ,
(D.C. Nos. 2:05-CV-1049-TS and

2:03-CR -801-TS)
Defendant-Appellant.
OR D ER AND JUDGM ENT *
Before H E N RY, T YM KOV IC H, and HO LM ES, Circuit Judges. **
Robert W illiam M ontgomery 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 wifes
suicide which revealed that she used one of the firearms to kill herself.
This order and judgment is not binding precedent except under the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.
After M ontgomery pleaded guilty, the United States at sentencing moved

for a four-level upward departure under United States Sentencing Guideline
5K2.1 because M ontgomerys wifes death resulted from his unlawful possession
of firearms. Several witnesses testified at the June 10, 2004 hearing on the
governments motion, and based on that testimony the district court found
M ontgomery contributed to his wifes suicide because he treated her violently and
interfered with her treatment for depression. Consequently, the district court
granted the governments 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, M ontgomery moved for reconsideration of
the district courts decision to grant an upward departure. The district court
decided to continue to apply the sentencing guidelines, but without additional
fact-finding by the C ourt 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. M ontgomery, 324 F. Supp. 2d
1266, 1271 (D. Utah 2004). The court specifically noted that the facts regarding
M ontgomerys 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 M ontgomery to 57 months, the top of the
Guidelines range. Id. at 127273.
-2-
Both M ontgomery and the United States appealed the sentence.

M ontgomerys appeal was dismissed on his own motion on June 27, 2005. In the
United States appeal, we reversed M ontgomerys 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. M ontgomery, 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). M ontgomery, 439
F.3d at 1262. On remand in November 2006, M ontgomery was again sentenced to
57 months.
Prior to remand, M ontgomery made several filings in the district court. In
August and December 2005, while his case was on appeal, M ontgomery 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 wifes
medical records to him. The court construed M ontgomerys letters as an attack
on his sentence under 28 U.S.C. 2255 and opened a civil case for M ontgomery
to pursue the matter. The court notified M ontgomery of its action under our rule
that a district court may not construe a pro se litigants 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
-3-
States v. M artin, 357 F.3d 1198, 1199 (10th Cir. 2004). M ontgomery responded
by withdrawing his construed 2255 motion and requesting that the civil case be
dismissed. Pursuant to M ontgomerys request, the district court dismissed the
civil case. 1
This is an appeal from that civil case, No. 2:05-cv-01049-TS. W e note that
M ontgomery is also pursing an appeal from his sentence in criminal case No.
2:03-cr-801-TS in this court. See U nited States v. M ontgomery, No. 06-4300
(10th Cir. appeal docketed Dec. 7, 2006). The single issue M ontgomery raises in
this civil appeal concerns the district courts 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 M ontgomery raises in this appeal developed in the context of his
criminal proceeding. The testimony M ontgomery alleges was perjured was
offered at the June 10, 2004 hearing in his criminal case. Although M ontgomery
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
The court additionally denied M ontgomerys request to order the release

of his w ifes medical records. The court noted that the records w ere irrelevant to
any attack on M ontgomerys sentence since her death was not a factor considered
in re-sentencing. The court furthermore referred to indications at M ontgomerys
2006 re-sentencing that M ontgomery could obtain the requested medical records
directly from the hospital. In fact, M ontgomerys September 1, 2006 Request
for a Contempt Order references various medical records, and M ontgomery does
not renew his request regarding medical records on appeal.
-4-
number on November 3, 2006. The court denied the motion at M ontgomerys

criminal re-sentencing hearing on November 6, 2006. 2 M ontgomerys Docketing
Statement in the criminal appeal, filed on M arch 6, 2007, refers to M ontgomerys
allegations of perjury and the district courts ruling on the motion for contempt.
Therefore, M ontgomery may properly raise issues surrounding the motion for
contem pt in his criminal appeal.
M ontgomerys filings in the instant appeal raise no issues w ith respect to
his civil case. M ontgomerys request for a Certificate of Appealability is
therefore DEN IED , and this appeal is DISM ISSED.
Entered for the Court
Timothy M . Tymkovich
Circuit Judge
In its order dismissing the civil case, the court reiterated that it had
disposed of the motion for contempt at the re-sentencing hearing.
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F I L E D

United States Court of Appeals

March 16, 2007

U N ITED STA TES O F A M ER ICA,

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

OR D ER AND JUDGM ENT *

Before H E N RY, T YM KOV IC H, and HO LM ES, Circuit Judges. **

Robert W illiam M ontgomery was charged in a one-count indictment with

After M ontgomery pleaded guilty, the United States at sentencing moved

Both M ontgomery and the United States appealed the sentence.

The court additionally denied M ontgomerys request to order the release

number on November 3, 2006. The court denied the motion at M ontgomerys

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