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052263P.pdf   01/06/2006  United States  v.  Marlin Hawk Wing
   U.S. Court of Appeals Case No:  05-2263
   District of South Dakota   
   [PUBLISHED] [Smith, Author, with Loken, Chief Judge, and Bye, Circuit Judge]
   Criminal case - Sentencing. The Presentence Report gave defendant
   adequate notice of the possibility of an upward departure and fulfilled the
   notice requirement of Rule 32; district court did not err in considering
   defendant's prior guilty pleas in setting criminal history score; while the
   court could not rely on active arrest warrants, it had other adequate
   grounds for the upward departure, and any error in considering the arrests
   was harmless; after a district court chooses imprisonment as the proper
   punishment, it is not prohibited under 18 U.S.C. Sec. 3582 from
   considering correction and rehabilitation in determining the length of a
   defendant's sentence; sentence was reasonable. Chief Judge Loken,
   concurring.