Whether a district court can vary upward from the advisory sentencing range under the factors in 18 U.S.C. § 3553(a) based on the inadequacy of a defendant's criminal history where the district court failed to determine first whether the defendant's criminal history was inadequate under U.S.S.G. § 4A1.3

QUESTION PRESENTED FOR REVIEW The United States Sentencing Guidelines Manual provides precise and mandatory instructions on how its provisions are to be applied. U.S.S8.G. § 1B1.1. Those precise and mandatory instructions provide a specific order for a sentencing court to follow as it determines the sentencing range. § 1B1.1(a). The sixth step is that a sentencing court shall “determine the defendant’s criminal history as specified in Part A of Chapter Four. Determine from Part B of Chapter Four any other applicable adjustments.” U.S.S.G. § 1B1.1(a)(6). Section (b) then provides that “[t]he court shall then consider Parts H and K of Chapter Five, Specific Offender Characteristics and Departures, and to any other policy statements or commentary in the guidelines that might warrant consideration in imposing sentence.” U.S.S.G. § 1B1.1(b) (emphasis added). Finally, section (c) provides that “[t]he court shall then consider the applicable factors in 18 U.S.C. § 3553(a) taken as a whole.” U.S.S.G. § 1B1.1(¢) (emphasis added). Those precise and mandatory instructions make it clear that a sentencing court has to properly determine the defendant’s criminal history as specified in Part A of Chapter Four and has to determine any possible departures under the Guidelines before varying from the applicable sentencing range under section 3553(a) factors. Here, the district court failed to apply a departure under § 4A1.3 for underrepresentation of criminal and yet varied upward under § 3553(a) factors on the same basis. The Court of Appeals affirmed the sentence holding that a sentencing court “need not impose a Guidelines enhancement before varying upward based on the same factor.” United States v. Lewis, No. 21-14044 (11th Cir. July 18, 2022). Given the strictures of § 1B1.1 and the unique nature of a departure under § 4A1.3, this petition presents the following question: Question Presented: Whether a district court can vary upward from the advisory sentencing range under the factors in 18 U.S.C. § 3553(a) based on the inadequacy of a defendant’s criminal history where the district court failed to determine first whether the defendant’s criminal history was inadequate under U.S.S.G. § 4A1.3 which provides a unique procedure for determining the adequacy of a criminal defendant’s criminal history and whether that determination supports a departure under the Sentencing Guidelines? i INTERESTED PARTIES There are no