Pre-Booker Upward Departure OK'd

U.S. v. Martinez, 2005 WL 1926642 (8/12/05) - Applying pre-Booker standards, a 4 level upward departure on the ground that the grouping guidelines left unpunished 4 of the defendant's 10 bank robberies was a reasonable amount of departure. It was appropriate to assign two criminal history points to a prior conviction for which the defendant didn't actually serve time. What matters is what imprisonment was imposed. Any preserved non-constitutional Booker error was harmless because the district court imposed a discretionary upward departure, making it unlikely it would impose a different sentence upon remand.