District court must consider defendant's cooperation with government when departing upward from sentencing guideline range

SENTENCING United States v. Doe, No. 03-3255, ___ F.3d ___ (10th Cir. Feb. 24, 2005)(Kansas). Appeal of sentence for unlawful use of communication facility and possession of firearm in furtherance of drug trafficking crime in violation of 21 U.S.C. § 843(b) and 18 U.S.C. § 924(c). HELD: District court erred by refusing to fully consider defendant's cooperation in deciding to depart upward from sentencing guidelines range and in setting degree of departure because defendant's assistance was not presented in a government motion brought under U.S.S.G. § 5K1.1. On remand, district court must consider defendant's assistance in determining sentence. However, on resentencing, district court is not required to credit defendant for assistance to government because under United States v. Booker, 125 S.Ct. 738, 767 (2005), while district court is not bound to apply guidelines, it must at least consult them and take them into account when sentencing. Read the opinion here.