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U.S. v. ASHBURN

No. 93-1067.

38 F.3d 803 (1994)

UNITED STATES of America, Plaintiff-Appellee, v. Philip Scott ASHBURN, Defendant-Appellant.

United States Court of Appeals, Fifth Circuit.

November 15, 1994.

Attorney(s) appearing for the Case

Timothy J. Henry, Timothy Crooks, Asst. Federal Public Defenders, Ira R. Kirkendoll, Federal Public Defender, Fort Worth, TX, for appellant.

Christopher Stokes, Joe C. Lockhart, Asst. U.S. Attys., Richard H. Stephens, U.S. Atty., Fort Worth, TX, Delonia Watson, Asst. U.S. Atty., Dallas, TX, for appellee.

Before POLITZ, Chief Judge, GOLDBERG, KING, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHÉ, WIENER, BARKSDALE, E. GARZA, DeMOSS, BENAVIDES, STEWART and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

This case requires us to examine again the subject of departures under Section 4A1.3 of the Federal Sentencing Guidelines. Specifically, we must address whether conduct that formed the basis for counts of an indictment dismissed pursuant to a plea agreement may be considered in departing upward from the Guidelines, and we must revisit the issue of the justification required for such a departure under United States v. Lambert,

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