Sentencing Law and Policy

Will Irizarry finally explain the true nature of the post-Booker world?

I have mentioned before that I think the sleeper SCOTUS sentencing case this term in Irizarry, which technically addresses a seemingly little issue concerning notice for imposing sentences outside the guidelines. However, as revealed in the amicus brief supporting the Eleventh Circuit's ruling below (to which I contributed), the case presents an opportunity for the Justices to address more broadly the nature and status of departures and variances in the post-Booker world.  This amicus brief can be downloaded below, and here is the start of the summary of argument which highlights the deep conceptual issues that the Justices might have to address in Irizarry:

Federal Rule of Criminal Procedure 32 does not require a district court to provide notice prior to imposing a sentence outside the range recommended by the advisory Guidelines based on the factors set forth in 18 U.S.C. § 3553(a).  Neither provision of Rule 32 relied upon by Petitioner — Rule 32(h) or Rule 32(i)(1)(C) — supports a notice requirement in this context.

Petitioner’s reading of Rule 32(h) cannot be squared with the rule’s plain language, with speaks repeatedly and exclusively in terms of departures. Departures and variances are fundamentally different sentencing devices: departures depend on facts not adequately taken into account by the Sentencing Commission; variances depend on reasoned judgments based on the considerations set forth in Section 3553(a) by Congress.  In light of the fundamental distinction between a departure and a variance, the notice rule for departures has never been, and should not now be, extended to variances.

Download irizarry_amicus_brief.pdf

Another notable notice opinion before Irizarry

The Supreme Court will soon hear argument in Irizarry (basics here and here), a case which will force the Justice to explore "departures" and "variances" in the context of Rule 32(h)'s application after Booker.  As Irizarry buzz builds, the Sixth Circuit today provides another example of the case's importance through its work in US v. Alexander, No. 06-1867 (6th Cir. Feb. 26, 2008) (available here).  Here is how the (split) decision in Alexander starts:

Defendant-Appellant Donald Wayne Alexander pleaded guilty to an indictment charging him with sexual abuse of a minor in violation of 18 U.S.C. § 2243(a). The district court departed upward and sentenced Alexander to forty-two months’ imprisonment.  Because the district court failed to provide notice of the variance as required by Federal Rule of Criminal Procedure 32(h) we VACATE Alexander’s sentence and REMAND to the district court for re-sentencing.

Judge Kennedy provides this start to her dissent in Alexander: "While I agree with the majority that the district court’s failure to provide Defendant Alexander with reasonable notice of its intention to depart from the Guidelines range was plain error, I respectfully dissent with their decision to notice the error as Defendant has not demonstrated that this error affects substantial rights."

First Circuit weighs in on Rule 32(h) issue soon to be addressed by SCOTUS

As noted just earlier today, the Supreme Court will soon hear argument in Irizarry (basics here and here), a case which will force the Justice to explore "departures" and "variances" in the context of Rule 32(h)'s application after Booker.  Perhaps just to give us all some exciting pre-game reading, the First Circuit today issued an en banc opinion on this issue in US v. Vega-Santiago, No. 06-1558 (1st Cir. Feb. 21, 2008) (available here).  Here is a opening paragraph from the majority opinion:

The question before us is whether a district court, before sua sponte imposing a sentence outside the recommended guideline range, must automatically provide advance notice to the parties of its intent to do so and its contemplated reasoning. The circuit courts being divided,1 the Supreme Court is now likely to decide the issue, United States v. Irizarry, 458 F.3d 1208, 1212 (11th Cir. 2006), cert. granted, 2008 U.S. LEXIS 409 (Jan. 4, 2008) (No. 06-7517), but until it does, district judges in this circuit are entitled to guidance on an issue potentially present in every sentencing.  Our answer is that notice is sometimes, but not always, required.

Not only are there two lengthy dissents, but these paragraphs from Judge Torruella's dissent suggests that not all is well in the land of the First Circuit:

Although I am in substantial agreement with the views expressed by Judge Lipez in his excellent dissent, I am also deeply concerned by the serious policy, procedural, and substantive issues raised by the unwarranted haste which has characterized this en banc proceeding. Accordingly, I must state my views, even if in a preliminary and incomplete fashion.

The convocation of this particular en banc proceeding highlights the whimsical and uneven manner in which this circuit often applies the rehearing rules. Indeed, both the granting and denying of petitions for these extraordinary proceedings evince a double-standard with respect to which issues are deemed meritorious of such review.  See, e.g., Cerqueira v. American Airlines, No. 07- 1824 (1st Cir. XXXX) (Torruella, J. dissenting).  Time constraints do not allow for an exhaustive inventory of this asseveration, but the circumstances of this present appeal demonstrate one such example.

Exploring the relationship between departures and variances after Booker

Later this Term, the Supreme Court will hear argument in Irizarry (basics here and here), a case which may force the Justice to directly explore the status and relationship of "traditional departures" and "Booker variances" in an advisory guideline system.  Because I think these issues are very important (and yet still very under-theorized even as the Irizarry case is coming before SCOTUS), I am pleased to be able to spotlight a new version of an important note authored by a former student titled "The Benefits of Departure Obsolescence: Achieving the Purposes of Sentencing in the Post-Booker World."   Here is the abstract from SSRN:

Since the Supreme Court decided United States v. Booker, much scholarly debate has focused on what weight the Sentencing Guidelines should be given. But this focus does not advance what should be the central issue in all sentencing decisions: whether the purposes of sentencing are being fulfilled by the sentence imposed.  This Note advocates that the Booker opinion not only created a system of advisory Guidelines, but also was an attempt to refocus the sentencing inquiry on 18 U.S.C. Section 3553(a).  Nowhere is this more relevant than in the case of a defendant seeking a reduced sentence.  Prior to Booker, this was limited to narrowly defined departures from the applicable Guideline Sentencing Range.  But because pre-Booker departure decisions were largely devoid of Section 3553(a) analysis, many departures were purposeless. Therefore, pre-Booker departure precedent should largely be discarded. Thus far, only the Seventh Circuit (and the Ninth Circuit to a lesser degree) has declared departures obsolete. That said, one very positive development post-Booker has been the increasing usage of the vastly superior "variance" as opposed to traditional departures. The Supreme Court has recently given its blessing to the increased judicial discretion post-Booker, perhaps best typified by the variance concept.  This Note explores why departure "obsolescence" should be explicitly recognized in the wake of these post-Booker developments.