United States v. Bartsma

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
NOV 9 1999
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-3305

DONALD BEN BARTSMA,

Defendant-Appellant.

Appeal from the United States District Court
for the District of Kansas
(D.C. No. 98-CR-10047)

David M. Lind (Jackie N. Williams, United States Attorney, with him on the
brief), Assistant United States Attorney, Wichita, Kansas, for Plaintiff-Appellee.

Timothy J. Henry (David J. Phillips, Federal Public Defender, with him on the
briefs), Assistant Federal Public Defender, Wichita, Kansas, for Defendant-
Appellant.

Before BRORBY, HENRY and LUCERO, Circuit Judges.

BRORBY, Circuit Judge.

Appellant Donald Ben Bartsma pleaded guilty to one count of possession of

a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1) and was
sentenced to fifty-eight months imprisonment. In arriving at the final sentence,

the district court departed upward from the otherwise applicable Guideline range

pursuant to United States Sentencing Guideline 4A1.3. The district court also

imposed a special condition of supervised release requiring Mr. Bartsma to

register as a “sex offender” in any state in which he resides after his release from

prison. Mr. Bartsma now appeals, challenging the district court’s upward

departure, the special condition of supervised release, and also claiming he was

entitled to presentence notice of the court’s intention to consider imposing sex

offender registration as a special condition of supervised release. We exercise

jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We affirm in

part, reverse in part, and remand for resentencing.

BACKGROUND

Mr. Bartsma’s appeal focuses exclusively on the propriety of his sentence

and conditional release. As such, we only briefly discuss the facts. On July 20,

1998, Mr. Bartsma pleaded guilty to one count of possession of a firearm by a

convicted felon in violation of 18 U.S.C. § 922(g)(1). 1 The Presentence

1
Mr. Bartsma’s previous felony conviction was for rape by force. The
California court in that case sentenced Mr. Bartsma to a prison term of nine years,
which he served in its entirety.

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Investigation Report listed Mr. Bartsma’s base offense level at 20, as prescribed

in U.S.S.G. § 2K2.1(a)(4)(A). A three-level downward adjustment was

recommended for acceptance of responsibility under U.S.S.G. § 3E1.1(a) and (b)

to reach a total offense level of 17. When the offense level was cross-referenced

with the applicable criminal history category of IV, 2 Mr. Bartsma’s Guideline

range stood at thirty-seven to forty-six months.

At the sentencing hearing the district court determined the criminal history

category of IV did not adequately reflect either the seriousness of Mr. Bartsma’s

past criminal conduct, or the likelihood he would commit other crimes.

Accordingly, the district court imposed an upward departure to category VI, and

sentenced Mr. Bartsma to fifty-eight months imprisonment. The district court

also sentenced Mr. Bartsma to three years of supervised release, and as a

condition of the release required him to register as a sex offender in any state in

which he resides. The district court justified the upward departure and the

2
The probation officer who prepared the Presentence Investigation Report
assessed Mr. Bartsma three criminal history points for his rape conviction, three
points for a conviction of possession of a concealed weapon while in prison, and
two additional points pursuant to U.S.S.G. § 4A1.1(e) because Mr. Bartsma
committed the instant offense less than two years after his release from prison in
the rape case. Thus, the Report assessed Mr. Bartsma a total of eight criminal
history points. (ROA, Vol. III, P.I.R. at 8-9, ¶¶ 32-34.)

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registration requirement by citing: (1) the nature of Mr. Bartsma’s prior offenses,

which include child molestation and rape; (2) Mr. Bartsma’s history of prompt

recidivism after being released for prior offenses; and (3) California’s refusal to

grant Mr. Bartsma parole on several occasions because he was viewed as a danger

to the community.

Mr. Bartsma asserts several errors: (1) the district court abused its

discretion by imposing the upward departure; (2) the district court failed to notify

Mr. Bartsma it was considering imposing a sex offender registration requirement

as a condition of supervised release; and (3) the district court abused its

discretion by imposing the sex offender registration requirement as a condition of

supervised release because the condition (sex offender registration) was not

reasonably related to the nature or circumstances of the offense charged

(possession of a firearm by a felon).

DISCUSSION

I. The Upward Departure

The analysis we use when reviewing Sentencing Guideline departures is

well settled, and need not be spelled out exhaustively here. Following the

Supreme Court’s seminal case of Koon v. United States, 518 U.S. 81 (1996), we

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developed our general framework for reviewing Guideline departures in United

States v. Collins, 122 F.3d 1297 (10th Cir. 1997). See United States v.

Whiteskunk, 162 F.3d 1244, 1248-49 (10th Cir. 1998). The Guidelines

specifically allow a sentencing court to depart from the otherwise applicable

Guideline range “if the court finds ‘that there exists an aggravating or mitigating

circumstance of a kind, or to a degree, not adequately taken into consideration by

the Sentencing Commission in formulating the guidelines.’” U.S.S.G. § 5K2.0

(quoting 18 U.S.C. § 3553(b)). The Guidelines make a distinction between a

“heartland case,” fully anticipated and covered by the applicable guideline, and an

“atypical case,” in which a departure may be warranted. See Koon, 518 U.S. at

93-94. “It is up to the district court to determine whether certain factors take the

case out of the ‘heartland,’ and ‘make a refined assessment of the many facts

bearing on the outcome, informed by its vantage point and day-to-day experience

in criminal sentencing.’” Whiteskunk, 162 F.3d at 1249 (quoting Koon, 518 U.S.

at 98). This assessment “embodies the traditional exercise of discretion by a

sentencing court,” and in most cases is given “substantial deference.” Koon, 518

U.S. at 98.

In reviewing a departure from the Guidelines, we must evaluate:

(1) whether the factual circumstances supporting a departure are
permissible departure factors; (2) whether the departure factors relied

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 upon by the district court remove the defendant from the applicable
Guideline heartland thus warranting a departure; (3) whether the
record sufficiently supports the factual basis underlying the
departure; and (4) whether the degree of departure is reasonable.

Collins, 122 F.3d at 1303. We review all four steps of the departure analysis

under a unitary abuse of discretion standard. Id. When the district court’s

decision to depart is based on factual findings, the decision is “entitled to

substantial deference.” Whiteskunk, 162 F.3d at 1249.

As we stated earlier, the district court departed upward from the applicable

criminal history category of IV to a category of VI. The Sentencing Guidelines

specifically encourage an upward departure when the district court concludes “the

criminal history category does not adequately reflect the seriousness of the

defendant’s past criminal conduct or the likelihood that the defendant will commit

other crimes.” U.S.S.G. § 4A1.3. Because § 4A1.3 provides an encouraged basis

for departure, we find the district court relied on permissible departure factors

when imposing the upward departure. See Collins, 122 F.3d at 1304.

While conceding § 4A1.3 permits an upward departure for an under-

represented criminal history category, Mr. Bartsma focuses on the last three steps

of the Collins inquiry and contends the facts of this case are insufficient to

remove him from the heartland of criminal history category IV, the record is

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insufficient to support the factual basis underlying the departure, and the

departure was not reasonable. After reviewing the record before us, we conclude

the district court did not abuse its discretion in deciding to depart upward.

However, the district court failed to articulate sufficient findings to support the

degree of the departure, and therefore we remand for resentencing.

The district court based its departure on Mr. Bartsma’s “extensive criminal

record involving repeated crimes of violence,” and its determination he was “a

repeat criminal who repeats ... quickly after his release into the community.” The

court also noted “the prison records received from California Department of

Corrections reveal the defendant was not granted parole on several occasions

because he was viewed as a danger to the community.” The Presentence

Investigation Report, which the district court adopted, supports these conclusions.

Specifically, the report noted Mr. Bartsma had several juvenile adjudications,

including a charge of child molestation and a charge of unlawful sexual

intercourse with a minor, which went uncounted for the purposes of criminal

history. In addition, Mr. Bartsma had shown an inability to stay out of trouble –

he was arrested on the sexual intercourse with a minor charge just two months

after jurisdiction in the child molestation case terminated; he committed rape by

force four months after being paroled from the confinement sentence he received

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for the sexual intercourse with a minor charge; he was arrested in the current case

four months after serving his sentence on the rape charge. 3 Finally, California

Department of Corrections records indicated Mr. Bartsma had poor impulse

control, sadistic impulses toward women, and had fantasies that included raping

and torturing a woman. Given the record as a whole, and recognizing the district

court’s special competence in determining the unusualness of a case, see Collins,

122 F.3d at 1305, we are unable to say the district court abused its discretion in

granting the upward departure. The district court provided a sufficient

explanation, supported by specific facts in the record, for the departure.

Having upheld the district court’s determination to depart upward, we now

consider whether the extent of the departure – from a category IV to a category VI

– was reasonable. Our review of the reasonableness of a district court’s departure

is deferential. See Whiteskunk, 162 F.3d at 1253; Collins, 122 F.3d at 1303. To

adequately review a departure decision, we must examine the district court’s

stated reasons for the degree of departure, see United States v. Pool, 937 F.2d

1528, 1534 (10th Cir. 1991), “together with factors such as: ‘the seriousness of

3
The last incident of recidivism cannot be a basis for enhancement on its
own because two additional points were already added to Mr. Bartsma’s criminal
history score pursuant to U.S.S.G. § 4A1.1(e). See supra note 2.

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the offense, the need for just punishment, deterrence, protection of the public,

correctional treatment, the sentencing pattern of the Guidelines, the policy

statements contained in the Guidelines, and the need to avoid unwarranted

sentencing disparities.’” Collins, 122 F.3d at 1308-09 (quoting United States v.

White, 893 F.2d 276, 278 (10th Cir. 1990) (citing 18 U.S.C. § 3742(e)(3) and 18

U.S.C. § 3553 (a))). In Collins, we clearly reaffirmed our existing case law

requiring a district court to “specifically articulate reasons for the degree of

departure” using any “reasonable methodology hitched to the Sentencing

Guidelines,” including “extrapolation from or analogy to the Guidelines.” Id. at

1309 (quotation marks and citations omitted); see also Whiteskunk, 162 F.3d at

1253-54. This requirement – of stating the reasons for the degree of departure –

is separate and distinct from the requirement that district courts explain why a

departure is warranted. United States v. Flinn, 987 F.2d 1497, 1502 (10th Cir.

1993).

In the present case, the district court offered little more than conclusory

statements in support of its degree of departure. In its Memorandum and Order

ruling on Mr. Bartsma’s objections to the Presentence Report, the district court

stated:

Based on the materials in the Presentence Report, the court concludes
that the defendant’s criminal history category of IV significantly

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 under represents the seriousness of his prior criminal conduct and the
likelihood that he will commit other crimes. [The court then lists the
aforementioned factors used to justify the upward departure.] Under
the circumstances, the court concludes that a criminal history
category of VI more accurately reflects the seriousness of the
defendant’s criminal history and the likelihood of future crimes.

The district court made a similar oral ruling during the sentencing hearing. The

district court’s statements mirror similar justifications we have held in the past to

be insufficiently particular to support a degree of departure. See Whiteskunk, 162

F.3d at 1254; United States v. Okane, 52 F.3d 828, 837 (10th Cir. 1995); United

States v. Yates, 22 F.3d 981, 987-88, 991 (10th Cir. 1994); Flinn, 987 F.2d at

1503-04; United States v. Kalady, 941 F.2d 1090, 1100 (10th Cir. 1991); Pool,

937 F.2d at 1533-34. The factors listed by the district court – the nature of past

offenses, the history of recidivism, and the likelihood Mr. Bartsma would commit

future crimes – were sufficient to support a departure from the Guideline range,

but “this does not automatically suffice to explain the degree of departure.”

Whiteskunk, 162 F.3d at 1253.

As was the case in Whiteskunk, we find nothing in the record, the

presentence report, or the sentencing transcript which provides any explanation or

methodological basis for how the district court arrived at an upward departure of

two criminal history categories. Id. We often have stated the district court is not

required to justify the degree of departure with mathematical precision, but the

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court is required to include in its justification “some method of analogy,

extrapolation or reference to the sentencing guidelines.” United States v. O’Dell,

965 F.2d 937, 939 (10th Cir. 1992). To employ our degree of departure

reasonableness analysis when the district court has failed to so reference the

Guidelines would render our review difficult, if not impossible, and we would be

left to speculate as to why the sentencing court imposed a particular sentence.

See Whiteskunk, 162 F.3d at 1253; United States v. Gardner, 905 F.2d 1432, 1436

(10th Cir.), cert. denied, 498 U.S. 875 (1990).

Given our inability to determine whether the degree of departure was

reasonable, we must remand for resentencing. Mindful of the multitude of tasks

required of our district courts at sentencing, we nevertheless again implore them

to precisely lay out their reasoning and analysis as to why they selected a

particular degree of departure.

II. The Special Condition of Supervised Release – Sex-Offender Registration

Mr. Bartsma’s final two arguments center around the district court’s

imposition of the special condition of supervised release requiring him to register

as a sex offender. First, Mr. Bartsma contends he was entitled, as a matter of law,

to presentence notice the condition was under consideration. Second, Mr.

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Bartsma argues the district court erred by imposing the condition because there

was no reasonable relationship between the condition and the crime of possession

of a firearm by a felon. We review conditions of supervised release for abuse of

discretion. United States v. Edgin, 92 F.3d 1044, 1047 (10th Cir. 1996), cert.

denied, 519 U.S. 1069 (1997).

Before deciding whether presentence notice was required, we first must

determine whether Mr. Bartsma preserved the issue for appeal. The Government

argues defense counsel failed to object to the condition, or the lack of notice, and

therefore our review should be for plain error. See United States v. Fabiano, 169

F.3d 1299, 1307 (10th Cir. 1999), cert. denied, ___ U.S. ___, 1999 WL 412969

(U.S. Oct, 4, 1999). Defense counsel admittedly did not lodge a formal

objection. 4 However, we conclude Mr. Bartsma did not waive his objections to

4
In United States v. Coenen, 135 F.3d 938, 941 (5th Cir. 1998), the Fifth
Circuit, dubitante, judicially cured an arguably insufficient objection to reach the
issue of notice. Id. Counsel in Coenen did not object to the sex offender
registration condition until after sentence had been imposed, and when he did
object, he did not raise the issue of lack of notice. Id. In addition, counsel did
not request a continuance in order to prepare an argument against imposing the
condition. Id. The Fifth Circuit found it just as important, however, that the
district court never asked for additional evidence or comments on the registration
condition. Id.

At the sentencing hearing in the present case, defense counsel was clearly
caught off-guard by the imposition of the special condition, to the point he was
unable to make a reasoned argument against the condition. Counsel clearly had

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the special condition even if he did not assert them at the district court. We

decided a similar issue in Edgin, 92 F.3d at 1044, and find that case instructive.

In Edgin, the district court imposed a special condition of release that

prevented Mr. Edgin from contacting his son. Edgin, 92 F.3d at 1047. The court

imposed the condition near the end of the hearing, after Mr. Edgin had made his

final statement and the court had resolved the objections to the presentence

report. Id. at 1049. Mr. Edgin did not object to the special condition at the

sentencing hearing, arguing for the first time on appeal the district court acted

outside its statutory authority in imposing the condition. Id. at 1048. Citing the

some concerns about the condition; however the exchange with the court ended
too abruptly for those concerns to be fully developed:

[COUNSEL]: Your Honor, a couple other matters. The Court
did mention that you were going to require him to register as a sex
offender wherever he resides when he is finally released from prison.
Would it be the Court’s order that he register according to whatever
law that state has? Because I think practically all the states has [sic]
them now, sex offender registers.

THE COURT: My ruling is just what it says; wherever he goes
he’s to be registered.

[COUNSEL]: Even if the law doesn’t require him –

THE COURT: If the law doesn’t require it. As far as I’m
concerned, when I say so, the law requires it when I say so.

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requirements of Rule 32(c)(1) of the Federal Rules of Criminal Procedure, 5 and

noting Mr. Edgin was given no opportunity to comment on or notice of the special

condition, we held Mr. Edgin did not waive his attack by failing to assert it at the

trial court. Id. at 1048-49. The same reasoning is applicable to the specific facts

of the case before us. Mr. Bartsma had no notice the district court was

considering the special condition until the court stated its tentative sentence near

the beginning of the sentencing hearing. Mr. Bartsma was afforded an

opportunity to comment on the condition as evidenced by his attorney’s questions

to the court. However, as in Edgin, the complete lack of notice made it

impossible for the parties to anticipate the nature of the special condition and

short-circuited the significance of any opportunity to comment. See generally

Burns v. United States, 501 U.S. 129, 134 (1991) (describing the function of Rule

32 as providing for “focused, adversarial development of the factual and legal

issues relevant to determining the appropriate Guidelines sentence.”). Moreover,

this case is distinguishable from Fabiano, where we reviewed the imposition of a

similar condition of release for plain error when Mr. Fabiano did not object to the

condition at the sentencing hearing. Fabiano, 169 F.3d at 1307. In Fabiano, the

5
Rule 32(c)(1) states in part: “At the sentencing hearing, the court must
afford counsel for the defendant and for the Government an opportunity to
comment on the probation officer’s determinations and on other matters relating
to the appropriate sentence.” Fed. R. Crim. P. 32(c)(1).

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Presentence Report specifically listed compliance with a sex offender registration

law as a possible special condition for the district court to consider. Id. at 1308.

Mr. Bartsma was afforded no such notice in this case. Given these circumstances,

Mr. Bartsma did not waive his challenges to the special condition by failing to

raise them at the sentencing hearing.

We now turn to the question of whether Mr. Bartsma was entitled to notice

before the district court imposed the special condition ordering him to register as

a sex offender. Having found no controlling authority directly on point, we

analyze this issue as one of first impression. The only other Circuit to decide the

issue applied Rule 32 and the Supreme Court’s decision in Burns to hold

reasonable presentence notice was required. See Coenen, 135 F.3d at 943. We

reach the same conclusion here.

In Burns, the Supreme Court held Rule 32 required reasonable notice to the

parties when a district court is contemplating an upward departure based on a

ground not listed in either the presentence report or a prehearing submission by

the Government. Burns, 501 U.S. at 138-39. As mentioned previously, Rule

32(c)(1) states, in part: “At the sentencing hearing, the court must afford counsel

for the defendant and for the Government an opportunity to comment on the

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probation officer’s determinations and on other matters relating to the appropriate

sentence.” Fed. R. Crim. P. 32(c)(1). The Court in Burns reasoned that allowing

district courts to depart from the Guidelines sua sponte without first affording

notice to the parties would render “meaningless the parties’ express right [under

Rule 32] to comment upon ... matters relating to the appropriate sentence.”

Burns, 501 U.S. at 136 (quotation marks and citation omitted.). The Court went

on to say: “‘Th[e] right to be heard has little reality or worth unless one is

informed’ that a decision is contemplated.” Id. (quoting Mullane v. Central

Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)). 6 Not requiring notice

6
The case before us perfectly illustrates the reason for the Court’s
sentiment. Neither party had any inkling the district court was considering
imposing the sex offender registration requirement, so both sides were utterly
unprepared to make reasoned arguments to the court. Counsel for the
Government conceded at oral argument he was completely surprised by the
registration requirement, he had not even considered it as an option, and he would
have liked to have had some advance notice. As stated earlier, defense counsel
was obviously taken aback. Moreover, this was not a case where the special
condition imposed shared an obvious nexus with the crime charged. In fact, when
Mr. Bartsma first arrived in Kansas after having been released from prison, he
apparently tried to register as a sex offender and was told he did not need to
register under Kansas law. It strains credulity to argue Mr. Bartsma should have
known registration was a possibility after his possession of a gun conviction when
he had already been told his history as a rapist did not require it. Had the district
court given the parties notice, they could have briefed the propriety of the
condition, as well as the practical application. An intelligent, adversarial
argument would have helped the court flesh out the problems with the current
order. Without such an opportunity, we are left with an almost bare record telling
us Mr. Bartsma is required to “register as a sex offender,” with absolutely no
guidance as to what that actually means. Nor do we have the ability on review to
properly determine whether the sex offender registration requirement was

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would be “inconsistent with Rule 32's purpose of promoting focused, adversarial

resolution of the legal and factual issues relevant to fixing Guidelines sentences.”

Id. at 137. In Edgin, we implied this same rationale was applicable to special

conditions of supervised release when we held Mr. Edgin had not waived his right

to appeal, in part because he was “afforded no notice of ... the special condition.”

Edgin, 92 F.3d at 1049 (citing Rule 32 and Burns). Today we expressly conclude

the Burns rationale applies when a district court is considering imposing a sex

offender registration requirement as a special condition of supervised release, and

the condition is not on its face related to the offense charged.

We find further support for our position in the statutes. 18 U.S.C. § 3555

allows a district court to order defendants convicted of offenses involving fraud

or other intentionally deceptive practices to notify their victims of the existence

and nature of their conviction. When a district court plans to order notice

pursuant to § 3555, presentence notice to the parties is required: “Prior to

imposing an order of notice pursuant to section 3555, the court shall give notice

to the defendant and the Government that it is considering imposing such an

order.” 18 U.S.C. § 3553(d); see also Coenen, 135 F.3d at 941-42. This

reasonably related to the current offense because the district court did not make
findings to that effect. Notice to the parties could have solved these deficiencies.

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requirement not only allows the parties to properly develop relevant issues related

to the notice requirement, but it also affords the court an opportunity to specify its

reasons for imposing such a requirement. See 18 U.S.C. § 3553(d)(1) - (3). All

parties involved, including this court, would benefit from such a procedure when

a district court is considering imposing a special condition of supervised release

which includes a sex offender registration requirement.

We conclude Mr. Bartsma was entitled to receive reasonable presentence

notice, either from the Presentence Report, a prehearing submission from the

Government, or the district court itself, that a special condition of supervised

release requiring him to register as a sex offender was a possibility. 7 Mr. Bartsma

is obviously on notice now, and all parties should be prepared to address this

7
We do not create a rule today requiring notice prior to the imposition of
every special condition of supervised release. See United States v. Warren , 186
F.3d 358, 366 n.5 (3d Cir. 1999) (“Courts have been reluctant to include
conditions of supervised release or probation within the disclosure requirements
of Burns , apart from requiring notice in instances of community notification
provisions for sex offenders.”) (citing Coenen , 135 F.3d at 940-45; United States
v. Mills , 959 F.2d 516, 518-19 (5th Cir. 1992)). Nor do we in any way diminish
the district court’s discretion in sentencing a defendant. Obviously, a district
court is not limited to the options contained in the presentence report. Our
holding is limited to the unique facts of this case. The special condition at issue
here implicated a liberty interest, and there was a lack of any obvious nexus
between the condition and the crime of conviction. Fundamental fairness
requires notice – either actual or constructive – under these circumstances.

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issue on remand.

Having determined Mr. Bartsma was entitled to notice, we do not reach the

issue of whether the district court abused its discretion by imposing the sex

offender registration requirement in this case. We do note the record before us is

void of any findings or a determination by the district court that the special

condition was reasonably related to the current offense. District courts enjoy

broad discretion in fashioning conditions of supervised release. Edgin, 92 F.3d at

1048. However, the conditions must

“involve no greater deprivation of liberty than is reasonably
necessary’ to deter criminal conduct, protect the public, and provide
the defendant with needed educational or vocational training, medical
care, or other correctional treatment.... [T]he conditions must [also]
be ‘reasonably related’ to ‘the nature and circumstances of the
offense and the history and characteristics of the defendant.”

Fabiano, 169 F.3d at 1307 (quoting 18 U.S.C. §§ 3583(d), 3583(d)(1), 3553(a)(1)

- (2)). An appellate court should not be left to speculate about the nexus between

the condition and the nature and circumstances of the offense. See Edgin, 92 F.3d

at 1049. We trust the parties will argue this point on remand in order to allow the

district court to make sufficient findings in support of any condition of supervised

release the court may impose.

In conclusion, we hold the district court did not abuse its discretion by

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imposing an upward departure from the Sentencing Guidelines. The record is

clearly sufficient to support such a decision. However, the district court failed to

adequately justify the degree of departure. In addition, Mr. Bartsma was entitled

to presentence notice the district court was considering imposing a sex offender

registration requirement as a special condition of supervised release. Therefore,

we remand for resentencing with instructions to the district court to provide

sufficient findings in support of the methodology used to determine the degree of

departure. Remand is necessary also to afford Mr. Bartsma the presentence notice

he is entitled to, and will allow both parties the opportunity to argue the propriety

and the practicalities of sex offender registration in this case.

Accordingly, we AFFIRM the district court’s upward departure, VACATE

the sentence, and REMAND to the district court for resentencing in a manner

consistent with this opinion.

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