Bylas

MEMORANDUM *

Defendant Boyd Bylas appeals the district court’s upward departure and sentence, 18 U.S.C. § 3742 (e), following his guilty plea to two counts of assault with a dangerous weapon within the confines of an Indian reservation, 18 U.S.C. §§ 1153 , 113(a)(3). We need not decide whether our review is now de novo, Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act of 2003 (PROTECT Act), Pub.L. No. 108-21, § 401 (d)(2), 117 Stat. 650 , 670 (amending 18 U.S.C. § 3742 (e)), or is still abuse of discretion, because by definition a district court abuses its discretion when it makes an error of law, Koon v. United States, 518 U.S. 81, 100 , 116 S.Ct. 2035 , 135 L.Ed.2d 392 (1996). As we will explain, here the district court made two errors of law.

First, the Defendant argues that the district court improperly departed by offense levels to reflect his underrepresented criminal history. At sentencing, the district court identified specific criminal conduct that it believed was inadequately represented, but failed to refer to a new criminal history category as the basis for its sentence. Instead, it simply increased the Defendant’s offense level from…