Was there adequate notice of a departure the night before sentencing, as to allow Wolfe a fair opportunity to rebut the claims that increased his sentence above the guidelines?

QUESTION PRESENTED FOR REVIEW Question I Presented is: Was there adequate notice of a departure the night before sentencing, as to allow Wolfe a fair opportunity to rebut the claims that increased his sentence above the guidelines? The only notice of the issues of an upward departure, after the Presentencing Report noted there were no grounds for departure, was an 11" hour sentencing memorandum filed by the United States at 8:30 p.m. the night before the sentencing. This is especially true given the insufficient consideration of his personal life and mental stresses at the time of these offenses. Question II Presented is: Were Wolfe’s mental condition and his efforts at rehabilitation while incarcerated was fully considered in his sentencing? Although clear evidence of mental health issues on Wolfe’s part, including a prior attempts at suicide, and a request for consideration of that in sentencing, Wolfe’s mental state was not considered at all in his sentencing. Neither were his efforts at rehabilitation that were presented to the District Court. These led to a procedural and substantive error in his sentence where the trial court significantly departed upward focused on deterrence and punishment. This conflicts with both the Sentencing Guidelines and the sentencing factors of 18 USC 3553, shows consideration should be given as to lead to a lesser sentence than that which Wolfe received Questions III Presented is: Was the Count and racial/ethnic animus adjustments increasing the calculation of sentencing level erroneous as it overcounted Wolfe’s sentence. The multi-offense adjustment. The calculation began with a level 15 for the highest offense level, for threatening communications, but then for each of the four counts added | level. This double counts as punishment the first count, as it adds a point to the base level of 15 even though that is already counted. Further, enhancing his sentencing level for racial/ethnic animus, with no finding of the evidence being beyond a reasonable doubt, especially given Wolfe’s mental condition, and then using it as the basis to depart upward, was procedurally unreasonable. And did it also create another double jeopardy/double counting error that requires resentencing for Wolfe? 3 LIST OF ALL