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                        as a courtesy to the reader. They are not part of the opinion of the court.

041058P.pdf   06/20/2005  United States  v.  Jeremie Jay Schwalk
   U.S. Court of Appeals Case No:  04-1058
   District of South Dakota   
[PUBLISHED] [Colloton, Author, with Smith and Beam, Circuit Judges] Criminal case - Sentencing Guidelines. District court did not err in departing upward from the applicable guidelines range, based on uncharged conduct against the victim, the extreme nature of the injuries inflicted, the vulnerability of the young victim and the fact that defendant's criminal history category under-represented the likelihood of future criminal conduct; applying Pirani's plain error analysis, defendant was not entitled to Booker relief as he could not establish a reasonable probability that the district court would have imposed a lesser sentence under an advisory guidelines scheme.