Whether an upward departure from the advisory Sentencing Guidelines is subject to appellate review

question presented is: (1) Whether an upward departure from the advisory Sentencing Guidelines is subject to appellate review. Relying on acquitted and dismissed conduct, the district court applied upward departures of 10 and 12 levels under the Sentencing Guidelines and “stacked” petitioners’ sentences so that they received total sentences under 18 U.S.C. § 3553(a) that were higher than the statutory maximum penalty for each count of conviction. Petitioners’ sentences were 17 years and 10 years above the high end of their pre-departure guidelines ranges. The second and third questions presented are: (2) Whether reliance on acquitted and dismissed conduct to justify the reasonableness of a sentence under 18 U.S.C. § 3553(a) and dramatic increases under the Sentencing Guidelines violates the Fifth and Sixth Amendments; and (3) Whether acquitted and dismissed conduct can be used to support the reasonableness of a sentence under 18 U.S.C. § 3553(a) and dramatic increases under the Sentencing Guidelines as a matter of statutory and common law. i