United States v. Samuel William Donaghe

ORDER

The Order and Amended Opinion filed at slip op. 877 dated January 20,1995 is hereby WITHDRAWN.

The opinion filed at slip op. 11803 dated September 30, 1994 is amended as follows: [Editor’s Note: Amendments have been incorporated for purposes of publication]

With the changes indicated above, the petition for rehearing is DENIED.

OPINION

We must decide whether the district court based its upward departure from the Sentencing Guidelines on proper factors and explained adequately the extent of its departure.

I

On November 21, 1988, Samuel Donaghe was sentenced for making a false statement in a passport application in violation of 18 U.S.C. § 1542 . The district court did not apply the Sentencing Guidelines, because it was unclear at that time whether they were constitutional, and sentenced him to three years of probation. Because Donaghe had a history of sexually assaulting minors — he had been convicted of four such offenses previously — the court imposed the condition, among others, that Donaghe not associate with minors without the consent of the Probation Office.

On March 8, 1990, the district court revoked Donaghe’s probation pursuant to 18 U.S.C. § 3563 because he…