ADVERTISEMENTS

Yesterday in United States v. Barahona-Montenegro, No. 08?1345 (6th Cir. May 14, 2009), the panel of Judges Moore, McKeague, and Forester (E.D. Ky.) vacated a sentence as procedurally unreasonable and remanded the case for resentencing. At sentencing, the defense had objected to the criminal-history category in the PSIR. The defense argued that the defendant should have been in category III rather than IV. At IV, the guidelines were 37 to 46 months. At III, they were 30 to 37 months.

The district court never resolved the objection. The court sentenced the defendant to 48 months, an above-guidelines sentence whether or not the objection was sustained. The court noted the seriousness of the offense (illegal alien in possession of a firearm) and that the defendant had five children, all born out of wedlock, whom he was not supporting.

Some two months after the hearing, the court issued its written judgment. In that judgment, the court assigned the defendant criminal-history category III and said the sentence was based on an upward departure under Section 4A1.3, as category III under-represented the defendant?s criminal history.

The appellate court found that the district court failed to properly calculate the guidelines and did not adequately explain the sentence it imposed. The panel found that the district court failed to focus on the Section 4A1.3(a)(2) factors to support an upward departure. The events and convictions the district court cited were already accounted for in the guideline scoring. The panel also found that it could not determine whether the above-guidelines sentence was based on an upward departure or a variance and that the explanation the district court provided focused on irrelevant factors such as the children being born out of wedlock.

The panel ruled that the statement of reasons provided with the judgment did not cure the defects. It was issued some two months after sentencing and did not provide the necessary explanation. The sentence was procedurally unreasonable because of the lack of guideline calculation and explanation of the sentence.

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