Background
Michael Allen Kenney was convicted by a jury of possession of a firearm by a convicted felon in violation of federal law. The district court calculated an advisory Sentencing Guidelines range of sixty-three to seventy-eight months based on a total offense level of twenty and criminal history category five. The court then upwardly departed to criminal history category six pursuant to the Sentencing Guidelines Manual, resulting in a departure range of seventy to eighty-seven months. The district court found that Kenney’s criminal history category was understated due to serious convictions that did not receive points and a consistent pattern of reoffending shortly after completing sentences. It imposed an eighty-month sentence, noting the need for deterrence and the nature of the offense.
The court’s reasoning
The court reviewed the sentence under a deferential abuse-of-discretion standard. It noted that an upward departure is authorized under section four A one point three of the Guidelines when reliable information indicates that the defendant’s criminal history category substantially under-represents the seriousness of the history or the likelihood of future crimes. The court found that the district court properly considered Kenney’s uncounted, serious convictions in determining that category five understated the seriousness of his history. The court concluded that departing upward one level to category six was sufficient and that the district court adequately explained how the statutory factors justified the extent of the departure and the eighty-month sentence.
What it means going forward
This decision reinforces the authority of district courts to upwardly depart from the Sentencing Guidelines when a defendant’s uncounted serious criminal history significantly under-represents the danger they pose, even if the departure is limited to a single category level.
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