Upward Departure Affirmed
US v. Yazzie, No. 05-2303 (unpublished):
The COA affirmed an upward departure from 10-16 months to 18 months, after the district court determined that Mr. Yazzie's criminal history category of I was underrepresented because of two prior tribal convictions for battery and that CH II better represented his history. The COA concluded that the departure was reasonable under USSG 4A1.3, notinig that 4A1.3(i) allows for consideration of tribal convictions. The district court's characterization of the prior convictions as crimes of violence based on arrest reports did not undermine the reasonableness of the upward departure because it was unnecessary. Shepard v. US did not apply because under the guidelines, only reliable information was required; Shepard applies only when the classification of a prior offense must be determined. Finally, the sentence was reasonable under 3553(a).
Some important points are made in footnotes: The COA concludes that Mr. Yazzie had sufficient notice of the potential upward departure because the PSR stated the factors warranting departure. It also recognizes that the presumption of reasonableness for properly calculated GL sentences applies only on appellate review. In another footnote, it states that "[i]it is not clear that a sentence departing from the guidelines, even if properly done, is entitled to a presumption of reasonablenss. Accordingly, we do not employ the presumption in this case."
The COA affirmed an upward departure from 10-16 months to 18 months, after the district court determined that Mr. Yazzie's criminal history category of I was underrepresented because of two prior tribal convictions for battery and that CH II better represented his history. The COA concluded that the departure was reasonable under USSG 4A1.3, notinig that 4A1.3(i) allows for consideration of tribal convictions. The district court's characterization of the prior convictions as crimes of violence based on arrest reports did not undermine the reasonableness of the upward departure because it was unnecessary. Shepard v. US did not apply because under the guidelines, only reliable information was required; Shepard applies only when the classification of a prior offense must be determined. Finally, the sentence was reasonable under 3553(a).
Some important points are made in footnotes: The COA concludes that Mr. Yazzie had sufficient notice of the potential upward departure because the PSR stated the factors warranting departure. It also recognizes that the presumption of reasonableness for properly calculated GL sentences applies only on appellate review. In another footnote, it states that "[i]it is not clear that a sentence departing from the guidelines, even if properly done, is entitled to a presumption of reasonablenss. Accordingly, we do not employ the presumption in this case."
posted by Anonymous at 5:01 PM
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