Comisar

MEMORANDUM ***

Comisar appeals his 125-month sentence for his fraud conviction. He also appeals the district court’s refusal to grant him an evidentiary hearing to determine if he merited a U.S.S.G. § 5K1.1 motion from the government.

Comisar argues that it was an error for the district court to use judicial fact-finding to enhance his sentence under U.S.S.G § 4A1.3. Because Comisar was sentenced under the advisory Guidelines regime, the judge properly applied both the Guidelines and the factors enumerated in 18 U.S.C. § 3553 (a) to determine an appropriate sentence. She recognized her discretion to depart upwards under § 4A1.3 and balanced the factors enumerated in § 3553(a) to determine that a 125 month sentence was appropriate. It is “abundantly clear that the district court imposed a sentence outside of the Guidelines based upon consideration of § 3553(a) factors that the district court believed had not been adequately taken account of by the Guidelines calculation.” 1 Therefore, the 125 month sentence is, under our decision in United States v. Mix, “reasonable.”

A district court can review the government’s failure to file a § 5K1.1 motion if the defendant makes a…