Upward variation from sentencing guidelines is not abuse of discretion if court gives reasoned consideration to statutory sentencing factors

SENTENCING/PLEA AGREEMENT United States v. Yanez-Rodriguez, No. 08-2100, ___ F.3d ___ (10th Cir. Feb. 10, 2009)(New Mexico). Appeal of sentence for illegal re-entry to United States as breach of plea agreement. HELD: (1) District court did not abuse its discretion by varying upward from the sentencing guidelines range despite government’s plea-agreement recommendation for low-end guidelines range sentence. Where district court decides to vary upward after giving careful, reasoned, and reasonable consideration to sentencing factors enumerated in 18 U.S.C. § 3553(a), there is no abuse of discretion. (2) Where plea agreement bound government to recommend sentence at low end of guidelines range, and government acknowledged that obligation to district court, nothing in plea agreement prohibited government from defending against downward departure or variance from sentencing guidelines range. Therefore, government’s argument and aggressive cross-examination of defense psychologist about whether defendant was danger to other people and would continue to violate societal norms was not breach of plea agreement. Read the opinion here.