July 21, 2006
Second Circuit jumps into Rule 32 split
As noted here at DotD, the Second Circuit in US v. Anati, No. 05-3800 (2d Cir. July 20, 2006) (available here) has now addressed whether Rule 32(h) of the Federal Rules of Criminal Procedure still requires a sentencing court to give a defendant notice before imposing an above-guidelines sentence after Booker. As DotD explains, the "Fourth and Ninth Circuits have held that Rule 32 still applies, while the Third, Seventh, and Eighth have concluded that it does not [and now] the Second Circuit joins the yea-sayers in holding that Rule 32 still requires notice."
July 21, 2006 at 07:26 AM | Permalink
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While I have not read the 2nd circuit decision, computer problems from their end it appears, I do not agree with the Decision of the Day blog and their characterization of the 3rd's decision in USA v, Banks. Banks was an increase sentence case by virute of the 3553(a) factors, it was not a case where the district court failed to provide notice and then sentenced above the guidelines based upon some guideline calculation.
Posted by: David B. Chontos | Jul 23, 2006 11:01:19 PM