United States v. Fiume, No. 11-1971 (1st Cir. 2013)
Annotate this CaseDefendant was found guilty in a New York court of assaulting his wife Megan and sentenced to time served. At approximately the same time, the court entered a protection order prohibiting Defendant from approaching or communicating with Megan. Defendant later pled guilty to a statute criminalizing interstate travel with the intent to engage in conduct that transgresses a court-imposed protection order. The district court accepted the guideline calculations limned in the presentence investigation (PSI) report and imposed a top-of-the-range sentence of forty-one months. Defendant appealed his sentence, arguing that the sentencing court's two-level upward adjustment for violation of the court protection order constituted impermissible double counting because the violation of a court order was also an element of the offense of conviction. The First Circuit Court of Appeals affirmed, holding that the use in tandem of a base offense level dictated by U.S. Sentencing Guidelines Manual 2A6.2(a) and an upward adjustment under U.S. Sentencing Guidelines Manual 2A6.2(b)(1)(A) did not constitute impermissible double counting.
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