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Click here for the full text of this decision FACTS:George Andrews challenges an upward departure regarding his sentence. The Presentence Report assessed a total offense level of 14, which reflected 1. a base offense level of 6; 2. a seven-level increase pursuant to U.S.S.G. 2F1.1(b)-(1)(H) because the loss exceeded $120,000; 3. a two-level increase for more than minimal planning; 4. a two-level increase pursuant to 3A1.1(b)(1) because Carson’s age rendered her vulnerable; and 5. a three-level reduction for acceptance of responsibility. Andrews’s total offense level of 14, coupled with a criminal history category of I, yielded a guidelines range of 15 to 21 months’ imprisonment. At Andrews’ first sentencing hearing, the district court notified him that sentencing would be continued for thirty days and that the court was considering upwardly departing “up to and including the statutory maximum.” The court expressed dissatisfaction with Andrews’ guideline range, noting that drug couriers transporting contraband across the border for $200-$300 “to feed their starving children” typically face longer imprisonment. Andrews’ case was compared with, and placed in the same category with, the court’s most recent upward departure involving defendants who defrauded individuals out of charitable contributions immediately following the terrorist attacks of Sept. 11, 2001. At the sentencing hearing, the government recommended an upward departure to 37-46 months. After hearing from both sides, the court orally announced its decision to depart upwardly to 120 months. The court followed its oral pronouncement of sentence with a written opinion. The court first noted that the facts of Andrews’ case are egregious and that a guideline sentence of 15 months “would make a laughing stock of the concept of justice.” The court also commented on the federal bench’s need for “some modicum of discretion” in making sentencing departures and went on to explain, under four subheadings, its reasons for upward departure. First, under “Lack of Acceptance of Responsibility,” the court determined that despite his guilty plea, Andrews lacked sincerity, had failed to provide restitution, and sought to shift blame to his deceased mother. Next, under a heading entitled “Punishment Consequences Not Present,” the court stated that Andrews would not be subjected to additional punishment/loss consequences typically visited on white collar fraud defendants, because he did not face the “loss of mega income, removal of professional licenses and political power, forfeiture of mansions and limousines and being booted from the country club.” Third, under “Comparison to Other Departures by This Court,” the court cited two fraud cases in which it had upwardly departed and two in which it had imposed downward departures. Without discussing the facts of these cases, the court concluded that Andrews’ situation was more closely aligned with the upward departure cases. Finally, under “Comparison of Sentences in Financial Crimes with Guideline Punishment in Low-Level Drug Offenses,” the court again commented on the typical guidelines sentence imposed for drug couriers, concluding that “Andrews’s crime is far worse and deserves more punishment than the guidelines suggest.” As a result of its findings, the district court imposed an upward departure to 120 months. HOLDING:The judgment of sentence is remanded and vacated. The court removes the district judge from this case “because he has breached the barrier between the rule of law and the exercise of personal caprice.” The court erred in considering failure to accept responsibility as justification for an upward departure, because that factor is already considered and factored into the guidelines. The court erred in considering socio-economic status in giving Andrews an upward adjustment, because that is explicitly a prohibited departure factor under the guidelines. The court failed to provide adequate justification for its upward departure in comparing Andrews’s case to other fraud cases in which departures were granted. The court erred in considering the difference between drug and fraud sentences under the guidelines. The court’s attempt to insulate its upward departure by announcing an alternative consecutive sentencing ground is improper. “The original judge appears to have been motivated in part by a desire to hammer Andrews with a long sentence one way or the other, without paying attention to the dictates of the law. The irony is that the court would likely have been able to achieve the result it desired if it had properly considered the guidelines and applied appropriate factors that likely are present in this case, but now that outcome will be impeded by the restrictions imposed by the PROTECT Act [Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act] on remand for resentencing. At the end of the day, Andrews may deserve 120 months in prison for his reprehensible criminal acts, but he also deserves to be sentenced according to law.” OPINION:Smith, J.; Smith, Garza and Vance, JJ.

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