United States v. Romero, No. 10-1542 (10th Cir. 2011)
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Defendant Ronald Romero appealed his sentence imposed for assaulting a federal officer. Defendant was serving an unrelated prison sentence on a prior conviction when he attacked Shawn Boyd, a Bureau of Indian Affairs corrections officer, by spitting on him, gouging one of his eyes, and scratching his face and neck. He was indicted on one count of assaulting a federal officer and a jury found him guilty of that offense. The presentence investigation report (PSIR) detailed Defendant's lengthy criminal record, which included 20 prior convictions. The probation officer calculated his total offense level as 15 and his criminal history category as II, yielding an advisory Guidelines imprisonment range of 21 to 27 months. Defendant responded to the PSIR by affirmatively stating that he had no objection to its content. The government moved for an upward departure from the Guidelines range. Defendant did not file a written response to the government's motion. Having found that an upward departure was appropriate under the Sentencing Guidelines, the district court sentenced Defendant to 51 months' imprisonment. On appeal to the Tenth Circuit, Defendant argued that the district court erred in departing from the Guidelines' criminal history categories from "II" to "VI." Upon review, the Tenth Circuit gave "substantial deference to the district court's factual determinations" when it calculated Defendant's sentence. Finding that Defendant failed to preserve his objections to the district court's departure analysis, the Court affirmed the district court's judgment.
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