2003 WL 21347112, at *2 (8th Cir.2003); but see United States v. Jones, 332 F.3d 1294, 2003 WL 21399025, at *2 (10th Cir.2003) (applying de novo standard of review to a sentencing appeal pending as of the passage of the PROTECT Act). In assessing the district court’s authority to depart upward, we must determine whether the bases for departure were already taken into account by the offense guideline. See 18 U.S.C. § 3553(b)(1) (authorizing a departure only where the “court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described”); United States v. Bell, 303 F.3d 1187, 1192 (9th Cir.2002) (<HOLDING>). The guideline for involuntary manslaughter
holding the issue of standing is waived if not asserted at the district court level holding that the sentencing courts conclusion that there was simply no way to avoid the base offense level did not indicate mandatory application of the guidelines holding that a district court should avoid repeating the use of a factor previously accounted for in the offense level holding that law of the case prevented the new jersey district court from redetermining jurisdictional issue previously decided by the district of columbia district court and noting that the principles of comity among courts of the same level of the federal system provide further reason why  an issue already decided by a court of equal authority should not be reexamined holding that arithmetical error that resulted in an increase to a defendants base offense level pursuant to the sentencing guidelines affected his substantial rights even though the resulting sentence was within the range for the correct offense level