If Defendant Got §4A1.3 Departure at Original Sentencing, Revocation Guidelines Calculation Requires Use of Pre-Departure CHC

United States v. McKinney, No. 07-50170 (5th Cir. Mar. 7, 2008) (Jones, Davis, Garza)

Chapter 7 of the Guidelines Manual provides advisory sentencing ranges for probation and supervised release violations. The recommended ranges are determined by the grade of violation and the defendant's criminal history category. Policy statement §7B1.4(a) provides that "[t]he criminal history category is the category applicable at the time the defendant originally was sentenced to a term of supervision."

What if, at the original sentencing, the defendant received a downward departure to a lower criminal history category pursuant to policy statement §4A1.3? Does the Guidelines revocation calculation use the pre-departure or post-departure criminal history category?

McKinney holds that it's the former:

We . . . hold that where a district court granted a departure for the reasons set forth in U.S.S.G. § 4A1.3 at the time the defendant originally was sentenced to a term of supervised release, upon revocation of supervised release, the applicable criminal history category for determining the advisory revocation sentencing range under U.S.S.G. § 7B1.4(a), p.s., is that criminal history category determined prior to any such departure.

There's several pages worth of analysis in the opinion parsing the relevant Guidelines language, if you're interested in knowing why.