Split First Circuit ruling on upward departure based on conduct underlying vacated state convictions

Regular readers might recall long-ago posts here and here about a brouhaha in Massachusetts concerning the practice of some state judges being willing to vacate prior state conviction in an effort to impact federal sentencing realities.  Today, these issues became the focal point of a split First Circuit ruling in US v. Marsh, No. 07-1698 (1st Cir. April 1, 2009) (available here).  Here is how the majority opinion in Marsh gets started:

Matthew Marsh (“Marsh”) pled guilty to three counts of distributing and conspiring to distribute crack cocaine. He was sentenced to a total of eleven years’ imprisonment. The sentence was comprised of a statutory mandatory minimum of ten years and an additional year resulting from an upward departure from the applicable Sentencing Guidelines range.  The departure was based on conduct underlying certain state-court convictions that had been vacated less than two weeks prior to Marsh’s federal sentencing.  This appeal is limited to Marsh’s claim that the one-year upward departure was improper, and thus that his sentence was unreasonable.  We affirm, and in so doing, we reject the dissent’s view that the district court impermissibly considered the conduct underlying the vacated convictions.