Tuesday, March 27, 2007

Tenth Reverses Upward Variance

U.S. v. Acevedo, 2007 WL 853199 (3/22/07)(unpub'd) - The 10th reverses for plain error an upward variance due to an inadequate explanation to justify the variance. It was not enough for the d.ct. to simply say it adopted the government's variance arguments and found the criminal history category under-represented the seriousness of the defendant's criminal past, especially when the d.ct. went 12 months higher than the government requested. The 10th explained: "U.S. v. Atencio, 476 F.3d 1099 (10th Cir. 2007), has elevated the procedural requirements in sentencing." A word to our wise trial lawyers in the trenches: the 10th held the defendant's objection to the upward variance did not preserve the issue whether the d.ct. adequately explained the reasons for the variance.