Court may consider defendant’s unrelated conduct in fashioning sentence, but resulting sentence and method of calculation must be reasonable

SENTENCING United States v. Allen, No. 06-6111, ___ F.3d ___ (10th Cir. May 31, 2007)(W.D. Oklahoma). Appeal of sentence for possession of methamphetamine with intent to distribute. HELD: District court erred and imposed unreasonable sentence by substantially enhancing defendant’s sentence above sentencing guidelines range for crime of possession of controlled substance with intent to distribute where sentence was based on facts unrelated to crime charged (i.e., defendant’s professed desire to murder and rape young girls and steps he took to achieve those ends). While district court may consider unrelated, non-charged conduct in fashioning sentence, magnitude of variance and method by which it is calculated must be reasonable. -- [T]he district court essentially abandoned consideration of the advisory guidelines range and substituted a calculation based explicitly on unrelated conduct with which Mr. Allen had not been charged or convicted. -- We conclude that Mr. Allen’s uncharged activities, whether threatened or attempted, did not constitute relevant conduct under § 1B1.3 of the Guideline. To the extent that the district court used the uncharged conduct in this case as an offense characteristic, which is not clear, it violated a basic structural norm of the Guidelines system. -- In a case involving a variance of this magnitude, we hold that, whatever latitude a sentencing court may have to adjust a defendant’s sentence in an exercise of Booker discretion, it may not discard the advisory Guideline range and impose sentence, instead, on the basis of evidence of the defendant’s uncharged, unrelated misconduct, whether actually committed or contemplated for the future. Read the opinion here.