Defendanb-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,
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. § 5K2.1
2
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
Two days later, the Supreme Court decided
Blakely v. Washington,
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,
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 orpreparation. 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.-,
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,
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
Moreover, Mr. Montgomery’s narrow reading of § 5K2.1 is belied by the courts’ application of it in various contexts. Upward departures under § 5K2.1 have been sanctioned in cases where the death resulted from criminal conduct that could not be clearly deemed to have effected a homicide.
In
United States v. Purchess,
for example, a drug courier or “mule” voluntarily swallowed drugs packaged into pellet form, intending to sell the drugs for his own profit.
Nevertheless, the Seventh Circuit upheld an upward departure under § 5K2.1, concluding that the defendant knowingly risked the courier’s death and that the death resulted from the unusually dangerous circumstances arising from the manner in which the drugs were packaged when bought from the defendant.
Id.
at 1270-72;
see United States v. Ihegworo,
Mr. Montgomery additionally asserts that an upward departure is improper because his wife’s death did not result from his crime of conviction. This argument rests on two connected contentions: first, that there is an insufficient relationship between Mr. Montgomery’s offense of being an unlawful felon in possession of a firearm and Ms. Cottam-Montgomery’s suicide; and second, that the basis for the district court’s upward departure was Mr. Montgomery’s behavior toward his wife, which he asserts is unrelated to the crime of conviction.
The touchstone of the inquiry is whether it was reasonably foreseeable to Mr. Montgomery that his criminal conduct could result in his wife’s death.
United States v. Fortier,
We rejected that argument. Initially, we observed that there was “colorable argument” that defendant’s “conduct bordered on recklessness” (i.e., involved actual awareness of a risk and a decision to disregard it). Id. at 1232. But we concluded that irrespective of whether his conduct was reckless, defendant bore “sufficient legal responsibility for the bombing to support an upward departure.” Id. at 1232.
Several of the Guidelines relied upon by the district court for the upward departure permit an increased sentence where the specified harm “resulted” from the defendant’s conduct. We have interpreted the words “resulted from” in the Guidelines as permitting an increased sentence for harms that were a “reasonably foreseeable” consequence of a defendant’s conduct even where a defendant did not directly cause the specified harm. Fortier well knew-in great detail-McVeigh’s and Nichols’s plans to bomb the Murrah Building. Fortier also knew the guns he sold for McVeigh and Nichols were stolen as a “fundraiser” to offset expenses related to the bombing. Although the government cannot directly trace any of the proceeds from Fortier’s criminal activity, a reasonably foreseeable consequence of giving McVeigh and Nichols $2000 of the proceeds was to further the Oklahoma City bombing conspiracy.
Fortier,
Here, as in
Fortier,
the district court’s upward departure is supported by Mr. Montgomery’s knowledge of the possible consequences of his unlawful actions. Mr. Montgomery’s unlawful possession of firearms was a “link[ ] in the chain of events leading up to” his wife’s suicide.
See id.
at 1233 n. 5. As stated by the district court, “this is not simply a case of a felon in possession of a firearm whose wife com
Specifically, Mr. Montgomery’s escalating emotional and physical abuse of his wife, his knowledge of her previous suicide attempt only three weeks prior to her death, his reported attempt to prevent her from taking prescribed antidepressants, and his threat to take their son away from Ms. Montgomery, all indicate that her suicide by his weapon was reasonably foreseeable to Mr. Montgomery.
As noted by the district court, whether other individuals foresaw Ms. Cottam-Montgomery’s act is not the pertinent issue. Mr. Montgomery’s “conduct was such that he should have anticipated that a serious injury or death could result from his conduct.”
See Davis,
Mr. Montgomery cites
Fortier
and appears to argue that unless he had actual knowledge that his wife would commit suicide with one of the illegal firearms, the suicide was not reasonably foreseeable to him. However,
Fortier’s
rationale itself— which expressly did not turn on whether the defendant “was actually aware of the risk but chose instead to ignore it,”
Furthermore, Mr. Montgomery’s actual-knowledge contention is at odds with other Tenth Circuit case law and the law in other circuits. In
United States v. Metzger,
In Metzger, the relevant question was not whether the defendant “could have expected events to unfold in precisely the way they did.” Id. Instead, we examined whether it was reasonably foreseeable, given the inherently dangerous nature of a bank robbery, that a bystander might be seriously injured during the flight or apprehension of the perpetrator. Id. at 1227-28. Likewise in this case, given the inherently dangerous nature of Mr. Montgomery’s actions regarding his wife, it was reasonably foreseeable that his unlawful possession of firearms could result in Ms. Cottam-Montgomery’s death.
Some other circuits have adopted a similar view to the one we articulated in
Metzger. See United States v. Diaz,
Mr. Montgomery relies on
United States v. Allen,
In Allen, however, we held that a departure under the provision was unavailable because the district court attempted to base an increased sentence for a drug conviction on entirely non-drug related conduct. Id. Unlike in Allen, and contrary to Mr. Montgomery’s claims, here the district court granted an upward departure based on the offense conduct itself and not on account of Mr. Montgomery’s treatment of his wife. Rather, the district court found that Mr. Montgomery’s abuse, knowledge of her previous suicide attempt, threat to take away their son from her, and other “aggravating factors and circumstances” created, in their totality, an inherently dangerous situation rendering it reasonably foreseeable to Mr. Montgomery “that Ms. Cottam-Montgomery might suffer serious injury or death as a result of his illegal possession of weapons in his home.” ApltApp. at 22-23 (emphasis added).
Therefore, the upward departure was not based on Mr. Montgomery’s conduct toward his spouse; it was based upon a determination that Mr. Montgomery’s illegal possession of firearms was a link in the chain of events which resulted in his wife’s death.
See Fortier,
Because under the specific circumstances of this case, the district court did not err in deciding that Ms. Cottam-Mont-gomery’s suicide resulted from Mr. Montgomery’s unlawful possession of firearms, we hold that its upward departure under U.S.S.G. § 5K2.1 was permissible. Accordingly, we AFFIRM the court’s sentence.
Notes
. Two issues relating to the appropriateness of our decision to hear the merits of Mr. Montgomery's appeal bear mention, but they may be disposed of in summary fashion. First, Mr. Montgomery originally appealed the sentence on grounds that the district court allowed perjured testimony by a government witness during his sentencing and failed to hold the witness in contempt. In its answer brief, the government challenged Mr. Montgomery's standing to raise this contempt issue, and he conceded the point in his reply brief. In that same brief, however, Mr. Montgomery for the first time raised the contention of error related to the § 5K2.1 departure.
See
Aplt. Reply Br. at 1-14. Although the failure to raise an argument in an opening brief generally constitutes a waiver,
Stump v. Gates,
. Although the government’s motion was filed in 2004, the challenged application of § 5K2.1 by the district court did not take place until 2006, so we refer to the 2006 version of the Guidelines.
. Cf. Jessie K. Liu, Victimhood, 71 Mo. L.Rev. 115, 145 (2006) (tacitly recognizing that § 5K2.1 is not readily amenable to a cramped view of its scope, in noting that although "the Guidelines specify that departures may be warranted where death or physical injury 'resulted,' " they "do not explicitly state whether the person killed [or] injured ... must have been a victim of the crime”).
. Commenting "in passing” in a case involving an upward departure under the analogous Guidelines provision relating to conduct resulting in significant physical injuries, the First Circuit observed:
[T]he defendant here engaged in the commercial trade of potent substances [i.e., the animal tranquillizer, ketamine] that he must have known could have dire consequences in a myriad of circumstances.... Consequently, while he could not have anticipated the exact sequence of events that unfolded here, he could (and should) have foreseen the possibility of the kind of serious harm that in fact occurred.
Pacheco,