                                                                        F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                        March 16, 2007
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


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

               Plaintiff-Appellee,                       No. 06-4292
          v.                                             (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 wife’s

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         This order and judgment is not binding precedent except under the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 ontgomery’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

M ontgomery 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, M ontgomery 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 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 ontgomery’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 M ontgomery to 57 months, the top of the

Guidelines range. Id. at 1272–73.




                                         -2-
      Both M ontgomery and the United States appealed the sentence.

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

United States’ appeal, we reversed M ontgomery’s sentence and remanded for re-

sentencing 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 wife’s

medical records to him. The court construed M ontgomery’s 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 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

                                          -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 ontgomery’s 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 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 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



       1
         The court additionally denied M ontgomery’s request to order the release
of his w ife’s medical records. The court noted that the records w ere irrelevant to
any attack on M ontgomery’s sentence since her death was not a factor considered
in re-sentencing. The court furthermore referred to indications at M ontgomery’s
2006 re-sentencing that M ontgomery could obtain the requested medical records
directly from the hospital. In fact, M ontgomery’s 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 ontgomery’s

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

Statement in the criminal appeal, filed on M arch 6, 2007, refers to M ontgomery’s

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

Therefore, M ontgomery may properly raise issues surrounding the motion for

contem pt in his criminal appeal.

      M ontgomery’s filings in the instant appeal raise no issues w ith respect to

his civil case. M ontgomery’s 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




      2
        In its order dismissing the civil case, the court reiterated that it had
disposed of the motion for contempt at the re-sentencing hearing.

                                          -5-
