Tenth Reaffirms Upward Departure for Defendant Convicted of Assault While DUI

U.S. v. Pettigrew, 10th Cir. No. 05-2187, previously 455 F.3d 1164 (amended 10/12/06) - Following a petition for rehearing, the 10th has clarified why the defendant and other defendants who are convicted of assault while driving drunk get upward departures. The 10th previously said the defendant's excessive recklessness warranted an upward departure because it was a culpable mental state. In response to the valid point that excessive recklessness was not a more culpable mental state than that of most assault defendants who intentionally harm someone, the 10th now says the departure was warranted because, unlike other assault defendants, the defendant's excessive recklessness endangered other people. The 10th ignored the fact the trial judge never mentioned the danger to other people as a ground for departure.