United States v. Summerlin

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.

Appellant Jerry Dean Summerlin appeals his sentence imposed by the district court under the Federal Sentencing Guidelines. The appellant was convicted by a jury of possession of a firearm after conviction of a felony in violation of 18 U.S.C. Sec. 922(g)(1). Under the Guidelines appellant had a criminal history category of V. His adjusted offense level was twelve. The appellant's Guidelines sentence range was twenty-seven to thirty-three months. The district judge decided to depart upward and imposed a sentence of sixty months' imprisonment plus three years' supervised release and a fifty dollar assessment.

The United States concedes that the district court erred in sentencing appellant because of the absence from the record of a recital of the circumstances justifying the trial court's upward departure from the Guidelines and the circumstances supporting the reasonableness of the departure. See United States v. Jackson, No. 89-6118, slip op. at 7-9, 11-12 (10th Cir. Dec. 17, 1990) (en banc); United States v. Freitekh, 912 F.2d 421, 423 (10th Cir.1990); United States v. White, 893 F.2d 276 (10th Cir.1990); United States v. Smith, 888 F.2d 720, 724 (10th Cir.1989) cert. denied, 110 S.Ct. 1786 (1990). Because the district court gave an inadequate explanation of the reasons for departure and no reasons for the degree of departure we VACATE the sentence and REMAND for sentencing consistent with the mandates of the cited cases of this circuit. The mandate shall issue forthwith.