Post-Booker, district court interpretation of sentencing guideline departure provisions are reviewed de novo

SENTENCING United States v. Sierra-Castillo, No. 03-2123, ___ F.3d ___ (10th Cir. May 3, 2005)(New Mexico). Appeal of sentence for illegal reentry to United States following felony conviction in violation of 8 U.S.C. § 1326(a)(1)-(2) and 1326(b)(1). HELD: (1) Although district courts post-Booker have discretion to impose sentences outside guidelines-authorized range, they should continue to apply the guidelines departure provisions in appropriate cases. District court interpretation of guidelines departure provisions are reviewed de novo. (2) Under plain error analysis of Booker sentencing error, while district court judge stated he was sympathetic to defendant’s family circumstances and such statement might help satisfy third prong of plain error test (i.e., by showing that defendant would have received a lower sentence under post-Booker advisory guidelines scheme), failure to correct error would not impugn the fairness, integrity, and public reputation of judicial proceedings in light of very serious nature of defendant’s prior conviction for attempted sexual assault. Read the opinion here.