Upward departure under mandatory sentencing guidelines system is harmless error under post-Booker guidelines regime

SENTENCING United States v. Martinez, No. 04-4166, ___ F.3d ___, (10th Cir. Aug. 12, 2005)(Utah). Appeal of sentence for bank robbery in violation of 18 U.S.C. § 2113(a). HELD: Where district court exercised discretion under federal sentencing guidelines and departed upward in calculating defendant’s sentence, any error under United States v. Booker, 125 S.Ct. 738 (2005), resulting from district court’s mandatory application of sentencing guidelines was harmless as district court’s discretionary upward departure under mandatory pre-Booker guidelines system indicates it would not impose lower sentence on remand under post-Booker discretionary guidelines regime. Read the opinion here.