U.S. v. Loving

Dist. Ct. erred in sentencing defendant to 71-month term of incarceration on drug charges, where Dist. Ct. failed to explain how it calculated total offense level, and where Dist. Ct.: (1) disregarded parties’ agreement for additional one-level reduction in offense level for timely acceptance of responsibility; and (2) misused departure provisions of Sentencing Guidelines to determine calculated range rather than as basis for upward departure or variance. Record showed that presentence report proposed setting of defendant’s offense level at 24 based on drug quantity, with two-level enhancement for reckless endangerment during flight that was offset by two-level reduction for acceptance of responsibility. Dist. Ct.’s failure to explain rationale for calculation of offense level precluded Ct. of Appeals from determining whether Dist. Ct. had rejected government’s motion for third level of acceptance of responsibility, or, if Dist. Ct. had granted government’s motion, it accepted government’s reliance on section 3C1.2, application note 6 of Sentencing Guidelines to add offense level to 24, rather than to use upward departure to explain offense level. Moreover, record failed to show whether Dist. Ct. believed that 71-month prison sentence would be appropriate regardless of correct guideline range. On remand, after considering government’s motion for third-level reduction for acceptance of responsibility and calculating correct guideline range, Dist. Ct. could impose same 71-month sentence based on possible upward departure or variance and on factors under section 3553(a).