US v. Dalton: Dalton was convicted of credit card fraud based on a scam in which he used other persons' credit cards to purchase computer software which he turned around and sold on eBay. The Guideline range calculated in the PSR was 46 to 57 months. The Government moved for an upward departure based on the underepresentation of Dalton's criminal history in the PSR's calculation of a Criminal History Category of VI. The district court granted the motion and imposed a sentence of 105 months in prison.
On appeal, the Fourth Circuit reversed. Surveying the PSR, the court concluded that the district court properly concluded that an upward departure was appropriate based on Dalton's extensive criminal history, including many prior fraud convictions. In fact, many convictions were for fraudulent schemes that Dalton began just after release from prison (a few even began in prison). However, the court concluded that the district court did not adequately explain the scope of the departure. Specifically, the court failed to failed to employ the incremental departure analysis required by USSG 4A1.3(a)(4)(B) and calculated the departure range by moving horizontally on the sentencing table (i.e., to a higher hypothetical Criminal History Category) rather than vertically (to the next higher offense level).