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By Shari Allison

U.S. v. Robertson, No. 08-3126 (6/19/09) (Published) - Affirmance of an upward departure with a couple of preservation lessons. Departures are alive and well in the 10th Circuit. The 10th applies the same standard of review to departures it applied pre-Booker. The d. ct. did not err when it considered the defendant's conduct associated with arrests that did not result in convictions. As long as the d.ct. relies on the conduct, not the arrests themselves, the conduct is, as the 10th says, "fair game." The recitation in the PSR of the facts underlying the arrests established a factual basis for the departure because the defendant did not object to the facts. The departure from a criminal history category III to VI [from 18-24 to 41 months] was justified by the felon-in-possession defendant's prior commission of violence with guns [similar offenses to the instant offense]...continue to full post

Full post as published by Tenth Circuit Blog on June 29, 2009 (boomark / email).