Upward departure from guidelines sentencing range is not presumptively unreasonable

SENTENCING United States v. Valtierra-Rojas, No. 05-3390, ___ F.3d ___ (10th Cir. Nov. 9, 2006)(Kansas). Appeal of sentence for conviction of illegal reentry to United States after deportation for aggravated felony. HELD: (1) Sentence outside of properly calculated guidelines range is not presumptively unreasonable. (2) In evaluating degree of departure from advisory guideline sentence, court of appeals must look at divergence in terms of percentage and absolute time. Both factors must be considered together to give clear picture of discrepancy between guidelines range and the sentence actually imposed. In this instance, thirty-three month/122% departure -- resulting in sixty-month sentence -- is substantial. Compelling reasons must therefore support district court’s decision to depart upward from guidelines range. Under facts of this case, defendant’s propensity for dangerous criminal conduct when drinking provided sufficiently compelling reason justifying substantial increase from advisory sentencing range. Accordingly, district court’s imposition of sixty-month sentence was not unreasonable. Read the opinion here.