Friday, July 13, 2012

Specificity Required to Preserve Claim of Procedural Sentencing Error

US v. Soto-Arreola, No. 11-3348 (Kan), 7/12/12 (unpublished) - District court did not commit plain error in varying upward in sentencing aggravated reentry defendant, based in part on numerous arrests that did not result in convictions. (1) Court’s approach was reasonable in light of circuit precedent (US v. Mateo and US v. Robertson), so any error could not have been plain or obvious, and (2) Defendant did not even try to show that, but for the alleged error, there was a “strong possibility” that he would receive a “significantly lighter sentence” on remand.
Takeaway point about this case is about preserving procedural error. Defendant did object to upward variance, arguing that the offense level calculation and criminal history adequately took into account defendant’s criminal background. Not good enough. Had to specifically object to varying upward based on charges that did not result in convictions, including specific objection that the PSR did not even provide any underlying detail about some of them.