Task: Wrong Candidate Generation
Input (English): a drunk driver’s base offense level for involuntary manslaughter. 162 F.3d at 1252. Reasoning that “recklessness” covers a broad spectrum of behavior, the Tenth Circuit concluded that district courts should be free to depart if the facts indicate “a degree of recklessness that falls on the periphery of reckless conduct.” Id. at 1251. Among the factors justifying the upward departure were the defendant’s high blood-alcohol level, a prior conviction for drunk driving that had put her on notice of the dangerousness of her conduct, and several opportunities to avoid the accident on that day, including being refused service at a bar, having her keys taken from her, and narrowly avoiding a collision with another vehicle. Id. at 1252-53; see also Jones, 332 F.3d 1294, 2003 WL 21399025, at *4 (<HOLDING>). In both Whiteskunk and Jones, the Tenth 
 Holding statements: (A) holding that the district court violated fedrcrimp 32 by departing upward in sentence without notice and the psr identified no grounds for departure (B) holding that district courts error was not harmless because the court relied on an improper factor in imposing an upward departure (C) holding that a high bloodalcohol content and prior drunk driving convictions justified an upward departure on extreme recklessness and public safety grounds (D) holding that notice must state the specific grounds for the departure (E) holding that defendants diminished capacity while grounds for departure from the guidelines sentencing range is not grounds for departure below the minimum sentence set by congress
Output (English): holding that district courts error was not harmless because the court relied on an improper factor in imposing an upward departure