Upward Departure Remanded for Resentencing

United States v. Phillips, No. 09-30296.March 7, 2011

U.S. v. Phillips, 2011 WL 777881 (C.A.5 (La.)) (C.A.5 (La.),2011)
Defendant pled guilty to three counts of transmitting threatening communications in interstate commerce and one count of unauthorized possession of 15 or more access devices with the intent to defraud.

According to the PSR, the sentencing range was 51-63 months. The PSR, however, recommend an upward departure may be warranted under § 4A1.3(a)(1) because Phillips's criminal history was substantially under-represented. The PSR instructed the court to move incrementally down the sentencing table to the next higher offense level until it found one appropriate to the case. No objections to the PSR were filed. Defendant was thereafter sentenced to 92 months. 

On appeal, he argued the court plainly erred in failing to articulate reasons for the 92-month sentence that was significantly outside the Guidelines range as explained by both the PSR and the SOR. 

The 5th remanded for resentencing holding the above-Guidelines sentence lacks “the accompanying justification from the district court that the Supreme Court has recognized is necessary to promote the perception of fair sentencing” and to allow for meaningful appellate review.