Upward Variance OK

U.S. v. Taghizadeh, 2008 WL 17901291 (4/21/08) (unpub'd) - The 10th affirms an upward variance from 121 months to 216 months on the grounds that the sexual-exploitation-of-a-minor Guidelines contemplated neither the videotaping of sexual acts [as opposed to sexually explicit poses] nor the defendant participating in the sexual acts. Those were two separate, [not double-counting] factors that justified the variance. Importantly, though, the 10th confirmed the continued vitality of the Atencio case, 476 F.3d at 1106, asserting that a district court commits a procedural error if its reason for a variance is already factored into the sentence or it uses the same justification to support multiple deviations from the guideline range. That contention might [or might not] be in some tension with U.S. v. Smart, 518 F.3d 800 (10th Cir. 2008).