In U.S. v. Valdes, No. 06-15951 (Sept. 18, 2007), the Court vacated a 108-month sentence, which exceeded the 41-51 month range of the PSI, and the 57-71 month range urged by the government.
The Court noted that if the district court intended to apply an upward departure under USSG 4A1.3, if failed to follow the requisite procedures, namely it failed to first consider the next criminal history category and make a determination whether its range was appropriate. The Court further noted that if the district court intended to rely on 18 U.S.C. § 3553(a) to vary upward from the Guidelines, the reasons discussed were inadequate to support an extraordinary variance. The Court noted that nothing extraordinary about the case justified the extreme variance, pointing out that even though the offense of conviction involved counterfeiting checks from the clerk of the District Court, this office was no different from any other fraud victim.
