Gov't Successful in Reversing Guidelines Sentence

U.S. v. Montgomery, 2006 WL 574418 (3/10/06) - The government successfully appeals a district court's post-Blakely, pre-Booker vacation of its original upward departure order. The district court initially imposed an upward departure. Blakely was decided a few days later. The district court granted the defendant's motion for reconsideration, ruled Blakely precluded the departure and imposed a sentence at the highest end of the guideline range. The district court erred by treating the guidelines as mandatory. The defendant could not prove the error harmless because the district court indicated it would impose a higher sentence if it had the discretion to do so.