Upward departure based on impermissible double counting, contradictory facts, and insufficient explanation for degree of departure requires remand

SENTENCING United States v. Wolfe, No. 04-2114, ___ F.3d ___ (10th Cir. Jan. 31, 2006)(New Mexico). Appeal of sentence for involuntary manslaughter, in violation of 18 U.S.C. §§ 13, 1112, and 1153. HELD: (1) District court erred in departing upward beyond sentencing guidelines range by relying on factor supported only by contradictory statements in presentence report concerning speed of vehicle being driven by defendant at time she lost control of vehicle and caused death of two passengers. (2) District court impermissibly double counted when it departed upward three levels because defendant’s conduct resulted in two deaths. Sentencing guideline calculation already accounted for two deaths. (3) District court erred in departing upward from sentencing range for involuntary-manslaughter halfway to the range provided for second-degree murder without providing sufficient explanation as to why defendant’s conduct justified such extraordinary degree of departure. District court need not justify degree of departure with mathematical exactitude, but must provide justification that includes some method of analogy, extrapolation, or reference to sentencing guidelines. Read the opinion here.