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04-1721 U.S. v. Long

By: dmc-admin//October 10, 2005//

04-1721 U.S. v. Long

By: dmc-admin//October 10, 2005//

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“The district court concluded that an offense level of 25 ‘is not an accurate reflection of what [Long’s] sentence should be.’ In deciding how many levels to add, the court relied on its authority under § 5K2.0(a)(3) to use a circumstance that ‘is taken into consideration in determining the guideline range, if the court determines that such circumstance is present in the offense to a degree substantially in excess of . . . that which ordinarily is involved in that kind of offense.’ In Long’s case, the court found that Long possessed between 13 to 18,000 images and ‘[t]hat’s many, many times more than the 600 that call for an upward adjustment of 5 levels’ under § 2G2.4(b)(5)(D). This is (or would have been) a legitimate reason for an upward departure.

“The district court thus adequately explained how the departure was linked to the structure of the guidelines. See United States v. Hogan, 54 F.3d 336, 342 (7th Cir. 1995) (‘[A] district court must link the extent of departure to the structure of the guidelines.’ (internal quotation marks and citation omitted)). As we noted earlier, the upward departure followed, as a practical matter, the pattern of imposing an additional offense level each time the number of images doubled from the previous cap. This was one acceptable way to link the departure to the guidelines. The court adequately explained its reasons for increasing Long’s sentence, and we find no error in either the decision to depart or the degree of departure.”

Affirmed and Remanded.

Appeal from the United States District Court for the Central District of Illinois, Mihm, J., Wood, J.

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