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May 17, 2006

Seventh Circuit deepens splits over post-Booker sentencing

Through its opinion today in US v. Walker, No. 05-1812 (7th Cir. May 17, 2006) (available here), the Seventh Circuit has deepened developing circuit splits over post-Booker sentencing procedures.  In Walker, the Seventh Circuit finds reasonable an above-guideline sentence and and makes this notable ruling along the way:

Rule 32(h)'s notice requirement — which applies to "departures" from the Guidelines, a concept that our post-Booker cases have called "obsolete" — does not apply here, where the district court selected a sentence at variance from the advisory Guidelines range based on the sentencing factors specified in 18 U.S.C. § 3553(a).

I have previous questioned here the sense of calling departures obsolete after Booker, and I believe the Sixth, Eighth and Ninth Circuits (and maybe others) have endorsed the continued application of the departure concept after Booker.  In addition, I know the Tenth Circuit (and perhaps others) has expressly held that the notice requirement of Rule 32(h) survives Booker and requires notice before an above-guideline sentence is imposed.

If we get more holdings like Walker, it may be only a matter of time before the Supreme Court has to take up a post-Booker case to help lower courts figure out how to sort through this brave (not-so-)new world.

May 17, 2006 at 10:13 PM | Permalink


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I was before the 3rd circuit on Tuesday. One of two issues they requested oral argument on was the application of Rule 32(h) post-Booker. With my overall goal of keeping discretion in the hands of district court judges at setencing, I advanced the position that departures from the intial guideline calculation trigger a rule 32(h) notice but, a variance from the finally determined sentencing range based on 3553 factors does not trigger the notice. Nowadays, your sentencing memorandum is filed a few days before sentenicng and you touch upon the most persasive 3553 factors hoping that your argumetn will register with the judge. For the judge to then give you notice that he will vary up or down is practically impossible given the few days he has to read your filing. Also it would give the government the opportunity to marshal up "information" to perhaps convince the judge to go the other way. Besides, when does your sentenicng memo have to be due ? The rule itself does not say it applies to 3553 only calcuations from the guidleines...so what rule based authority is there for notice on a variance pursuant to 3553? While I see the risk in not knowing what the trial judge will do, I also see the potential rewards. I know there will be times when the sentence is greater than you expected...on balance, however, I just think having the discretion in the judge without giving either side notice for a variance is more helpful to the defense than hurtful.

Posted by: David B. Chontos | May 18, 2006 8:29:13 PM

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