Federal Judges do not have to give Notice of Intent to Increase an out of Guidelines Sentence
In yet another interesting decision regarding federal sentencing, the United States Supreme Court dropped the hammer again and added another awkward twist to an already tangled sentencing regime.
The Decisions Below
The decision came in the case of Richard Irizarry, who threatened to kill his ex-wife and her relatives. After pleading guilty to making a threatening interstate communication, Irizarry was sentenced to 60 months in prison, which was actually 9 months longer than the federal guidelines’ maximum. The sentencing judge said the extra prison time was based on Irizarry representing a future danger to his ex-wife and family.
The judge that sentenced Irizarry also noted that the advisory status of the guidelines means federal courts are no longer required to give defendants and prosecutors advance notice. Irizarry appealed his sentence seeking relief but the Eleventh U.S. Circuit Court of Appeals agreed with the sentencing judge.
Federal Rule of Criminal Procedure 32(h) does not require Notice of Contemplated Variance
In Irizarry v. United States, No. 06-7517 (June 12, 2008), the United States Supreme Court held that Federal Rules of Criminal Procedure 32(h), which requires a sentencing court to give the parties advance notice that it is contemplating a departure from the Guidelines, does not require the court to give notice of a contemplated variance from a recommended Guideline range.
The Supreme Court further noted that Rule 32(h) was based on protecting a defendant’s expectation that his sentence would be within the applicable Guideline range. However, the Court noted that after United States v. Booker, a federal defendant no longer has the kind of “expectancy” that required notice. Furthermore, the Court was very specific to point out that Rule 32(h) itself referred to “departures” not “variances.”
In somewhat of a contradiction to the ruling, the Supreme Court did note that that district judges should consider granting a continuance of the sentencing when a party has a legitimate basis for claiming that it was illegitimately surprised by a contemplated variance.
Not all of the Justices Agree
In dissent, Justice Stephen Breyer adamantly disagreed with the majority’s decision and declared that “fairness justifies notice.” Breyer quoted Federal Rule of Criminal Procedure 32(h) which reads:
Before the court may depart from the applicable sentencing range on a ground not identified for departure either in the presentence report or in a party’s prehearing submission, the court must give the parties reasonable notice that it is contemplating such a departure.
Breyer criticized the Court’s finding that the intent of notice can produce unnecessary lengthy delays in sentencing and wrote that notice is “essential to assuring procedural fairness.” He further noted that the term variances are consistent with the ordinary meaning of the term “departure” and that the Court’s ruling is contrary to recent precedent.