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Upward Variance from 37 Months to 8 Years Ok'd

By Shari Allison

US v. Johnson, 2008 WL 4150019, No. 07-3112 (10th Cir. 9/10/08) (unpublished): The Tenth affirms the upward variance from the advisory guidelines range of 30-37 months to an 8-year sentence in a felon-in-possession case. On plain error review, the Court finds that the sentence was procedurally reasonable, rejecting arguments: (1) That the district court improperly relied on a memorandum prepared by the probation officer at the court's request; this memo used an "extrapolation method" to calculate a range of 51-63 months. (2) He didn't receive notice of the memorandum. (3) The judge didn't adequately explain his sentence. All were rejected because Mr. Johnson could not show substantial prejudice. The sentence was substantively reasonable based on the defendant's lengthy criminal history, which included five other firearms convictions.continue to full post

Full post as published by Tenth Circuit Blog on September 12, 2008 (boomark / email).