Upward Departure Based on Old, Dissimilar Conduct Affirmed

U.S. v. Mangum, 2015 WL 670187 (2/18/15) (Ut.) (unpub'd) - It was permissible for the district court to consider evidence, not supported by a conviction, that Mr. Mangum sexually assaulted minors outside the 15-year window and, based on that evidence, to depart upward under USSG § 4A1.3(a)(2) for Mr. Mangum's felon-in-possession offense that involved an assault. It doesn't matter that the alleged offenses did not fit any of the categories listed under § 4A1.3(a)(2) that would justify an upward departure for under-representation of criminal history. So here, even though the sexual assaults did not constitute "similar" conduct to the instant offense under § 4A1.3(a)(2)(E), the judge could depart upward based on them anyway. The list of five upward departure bases under § 4A1.3(a)(2) is not an exclusive list. The 10th concedes that, if the district court said it was relying specifically on § 4A1.3(a)(2)(E), the 10th might have spun the sentence.