A Most Reasonable Upward Departure

In an unpublished decision today, the Tenth Circuit affirmed a 327 month sentence in United States v. Akers when the advisory guideline was 140 to 175 months. The decision is notable for its discussion (and deference to) Gall as well as for the detailed analysis of the defendant's criminal record, which included defrauding others after being indicted, after pleading guilty, and up until the time of sentencing. While the Tenth noted that it would affirm based on pre-Booker case law, it also observed that the deference to the district court under Gall would compel the court to affirm (particularly since the defendant did not argue substantive reasonableness on appeal).

As an aside, the striking conduct of the defendant makes it difficult for one to surmise how even the most liberal judge would not have imposed such a sentence. One could imagine the government appealing the sentence had the judge only imposed a guideline sentence. The factual narrative of the opinion is a must read--not for any legal insight, but for a reminder that there are a few cases out there that truly are deserving of upward departures.