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November 17, 2007

Fifth Circuit approves upward departure based on "remote" uncharged conduct

Providing yet another example of Blakely principles being dishonored, the Fifth Circuit yesterday in US vs. Newsom, No. 06-10822 (5th Cir. Nov. 16, 2007) (available here), approves an upward departure based on uncharged conduct with only a remote connection to the offense of conviction.  Here are key snippets from the Newsom ruling:

Newsom argues that the district court erred when it upwardly departed at sentencing pursuant to § 5K2.21 based on his uncharged conduct involving drug distribution and unlawful firearms possession. He contends that § 5K2.21 permits an upward departure for uncharged conduct only if the conduct is related to the offense of conviction [which in this case involve theft of explosives].  We have only addressed § 5K2.21 generally in a limited number of cases, and so Newsom’s appeal presents an issue of first impression for our court....

[W]e join those other circuits, such as the Eighth Circuit, in interpreting § 5K2.21 as requiring some degree of connection between uncharged and charged offenses, although even a remote connection will suffice.  Turning to the facts of this case, we conclude that Newsom’s argument is without merit. Newsom’s uncharged conduct involves drug distribution and illegal firearm possession. Given that Newsom and his co-defendants, Hardin and Garrett, had a history of trading guns for drugs, and were all high on drugs the night they stole the explosives, we find that there is a sufficient connection between the uncharged and charged offenses.

November 17, 2007 at 11:32 AM | Permalink


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