« Notable state litigation over lethal injection issues | Main | Teague, state powers and retroactivity issues in Danforth »

October 31, 2007

First Circuit says Rule 32(h) notice applies to variances

As I noted here a few months ago, the federal circuits have been nearly evenly split on whether FRCrP 32(h) requires a district court to give advance notice before varying from the advisory guidelines range.  Thanks to this post at AL&P, I see that the First Circuit has weighed in today through US v. Vega-Santiago, No. 06-1558 (1st Cir. Oct. 31, 2007) (available here).  Helpfully, this opinion provides this effective account of the state of Rule 32(h) after Booker in the course of articulating the First Circuit's approach:

It appears that only the Seventh Circuit has held that Rule 32 no longer requires notice even for departures, having concluded that, after Booker, "the concept of departures [is] 'obsolete' and 'beside the point.'" United States v. Walker, 447 F.3d 999, 1006 (7th Cir. 2006).  Rule 32(h) remains in effect, however, and the government has in other cases accepted its continuing applicability....

The remaining nine circuits that have thus far addressed the issue have considered whether Rule 32(h) extends to sentencing variances, as well as departures, and they have split five to four.  The Third, Fifth, Eighth and Eleventh circuits hold that the Rule is limited to departures; the Second, Fourth, Sixth, Ninth and Tenth hold that it is not, and have applied the notice requirement to variances as well as departures.  For the reasons we elaborate below, we think the better view is that the notice requirement survives Booker and applies to any non-Guidelines sentence – whether imposed as a departure or as a variance.

October 31, 2007 at 03:27 PM | Permalink

TrackBack

TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d83451574769e200e54f7f63858834

Listed below are links to weblogs that reference First Circuit says Rule 32(h) notice applies to variances:

Comments

I think the First Circuit is correct that they have the "better view" on the question, but as the first court of appeals to rule on it after Rita, it is stunning to me that they do not cite that case for support. In Rita the Supreme Court itself cited Rule 32(h) as integral to the post-Booker sentencing process. Not that I think its statement was definitive on the issue, but seems to be a persuasive argument that the First Circuit left on the table.

Posted by: | Oct 31, 2007 3:49:53 PM

Please excuse my ignorance, but would you please explain the difference between a variance and a departure?

Posted by: EJ | Oct 31, 2007 4:28:08 PM

The guidelines expressly provide for "depatures" in extraordinary circumstances. Thus, even before Booker, a defendant could receive a non-Guideline sentence pursuant to a "departure." Rule 32(h) expressly covers "departures." A "variance" is when a district court, post-Booker, weighs the 3553(a) factors and decides the best way to comport with those factors is to give a sentence outside the guidelines. Rule 32(h) -- since it was enacted before Booker, -- is silent on variances. The result of a departure or variance can be the same, but the process to get there is different.

Posted by: | Oct 31, 2007 5:06:48 PM

I'm with the first poster. After Rita, I'm not sure how the circuits that think 32(h) is dead can possibly be right.

Posted by: Well | Oct 31, 2007 5:12:30 PM

I concur with commentors. Here's what I said about these issues in a post right after Rita:

Though Rita does not formally address this issue, the opinion cites Rule 32 when asserting that, post-Booker, sentencing decision-making should be subject to "the thorough adversarial testing contemplated by federal sentencing procedure." The Rita opinion also cites Burns , saying it recognizes the "importance of notice and meaningful opportunity to be heard at sentencing." Thus, it seem that the Rita Court favors the view of circuits applying Rule 32(h) to variances.

Posted by: Doug B. | Oct 31, 2007 7:00:37 PM

"Well," I don't think Rita squarely addressed FRCrP 32(h). Justice Breyer cited it, but he dropped a lot of hints without saying much of substance. I don't think Rita's very useful on this or really on anything else other than the question of how much a district judge needs to say by way of explanation for a sentence.

I'm with the CA3, CA5, CA8 and CA11. The Rule says "departures."

Posted by: | Nov 1, 2007 1:31:41 PM

It doesn't matter to Justice Breyer what the Rule says. Ever since Booker, he's had at least five votes to rewrite the SRA any which way that he can think of to improve it. From that perspective, his citation to Rule 32(h) should be telling to any court of appeals that does not want to be reversed.

Posted by: | Nov 1, 2007 2:49:06 PM

And in any event, it's not so much of a stretch to say that Rule 32(h) applies to variances also. "Variances" did not exist when the rule was written. The point of it was to give notice any time the defendant could be sentenced over the Guidelines range. It so happened that departures were the only way to do that. Well, now there is another way. And if we're making things up as we go along, I can think of more egregious ways to do it (i.e., Booker itself).

Posted by: | Nov 1, 2007 2:57:09 PM

I acknowledge Breyer's nod to 32(h). But it stills seems a bit odd that notice must be given before a court may impose a sentence outside a range that is neither mandatory nor to be presumed reasonable by a district court. Doesn't it reinforce Guidleines centrism to require such notice?

Posted by: | Nov 1, 2007 8:15:05 PM

Not "outside" ... rather, "above". Giving notice helps protect against actual Sixth Amendment, Apprendi/Blakely error in that it is harder to go above the guidelines (even if Justice Breyer -- and Stevens and Ginsburg -- won't acknowledge that that would be error).

Posted by: | Nov 1, 2007 9:13:13 PM

I see. Thanks.

Posted by: | Nov 1, 2007 11:55:21 PM

i like this part of the post:"I think the First Circuit is correct that they have the "better view" on the question, but as the first court of appeals to rule on it after Rita, it is stunning to me that they do not cite that case for support. In Rita the Supreme Court itself cited Rule 32(h) as integral to the post-Booker sentencing process. Not that I think its statement was definitive on the issue, but seems to be a persuasive argument that the First Circuit left on the table." is very good

Posted by: generic propicia | Apr 27, 2010 3:40:10 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB