Upward Variance OK'd by Tenth
U.S. v. Shaw, --- F.3d ----, 2006 WL 3505339 (10th Cir. December 06, 2006)
The district court’s 105 month sentence for D’s bank robbery conviction, which was an upward variant from guidelines of 57-71 months, was reasonable. The co-D, who was sentenced earlier, received a 105 month sentence–his guidelines were higher because he had a higher criminal history.
In a close-is-good-enough analysis, the 10th upheld the district court’s increase based on under-representation of D’s CH. The co-D’s CH was high because he picked up points for committing the robbery while still on supervision. D had been released from supervision 10 days before the robbery. The district court said their criminal background was the same–both had promptly reentered criminal activity. Moreover, D was more culpable because he punched the bank manager in the face, knocking out his tooth. The co-D got hit with the bodily injury enhancement as an accessory, but D was more culpable because he was the one who committed the assault.
The district court’s 105 month sentence for D’s bank robbery conviction, which was an upward variant from guidelines of 57-71 months, was reasonable. The co-D, who was sentenced earlier, received a 105 month sentence–his guidelines were higher because he had a higher criminal history.
In a close-is-good-enough analysis, the 10th upheld the district court’s increase based on under-representation of D’s CH. The co-D’s CH was high because he picked up points for committing the robbery while still on supervision. D had been released from supervision 10 days before the robbery. The district court said their criminal background was the same–both had promptly reentered criminal activity. Moreover, D was more culpable because he punched the bank manager in the face, knocking out his tooth. The co-D got hit with the bodily injury enhancement as an accessory, but D was more culpable because he was the one who committed the assault.
posted by Anonymous at 4:44 PM
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