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June 20, 2006

Third Circuit deepens split on variance notice issue

Deepening one (of many) post-Booker circuit splits, the Third Circuit today wades into the interesting issue of whether Rule 32(h) of the Federal Rules of Criminal Procedure should be understood to require a district court to give advance notice of its intent to vary from the guidelines.  As detailed in some posts linked below, a few circuits to consider the issue directly have concluded that Rule 32(h) still requires notice in this crazy, mixed-up, post-Booker variance world. But, in US v. Banks, No. 05-1715 (3d Cir. June 20, 2006) (available here), the Third Circuit has a different (and more nuanced?) view.  Here are a few highlights from an interesting decision (with cites removed):

Rule 32(h) was adopted at a time when courts could only avoid a Guidelines range by departing from the Guidelines.  However, the Supreme Court made clear in Booker that the Guidelines are now advisory.  Thus, district courts, post-Booker, exercise broad discretion in imposing sentences, so long as they begin with a properly calculated Guidelines range, fully consider the broad range of factors set forth in 18 U.S.C. § 3553(a), and all grounds properly advanced by the parties at sentencing. Thus, district courts continue to consider all grounds properly advanced by the parties at sentencing, as they did in the past, and they continue to consider the Guidelines range, which is now advisory.  What has changed post-Booker, is that sentencing is a discretionary exercise, and now includes a review of the factors set forth in § 3553(a).  These factors are known prior to sentencing.... Accordingly, given that defendants are aware that courts will consider the broad range of factors set forth in § 3553(a) at sentencing, we perceive none of the "unfair surprise" considerations that motivated the enactment of Rule 32(h).

Furthermore, the requirement of Rule 32(h) that the court specify "any ground" of contemplated departure from the Guidelines range was designed for pre-Booker departures, which were constrained by the provisions of the Guidelines pertaining to departures.  The Guidelines have now become advisory and they no longer limit the grounds a court can consider at sentencing.  Thus, the Guidelines are now only one factor among many which can influence a discretionary sentence. Application of the advance notice requirement of Rule 32(h) to discretionary sentence would elevate the advisory sentencing range to a position of importance that it no longer can enjoy.

Booker contemplates that the district court will impose a discretionary sentence after consideration of the advisory Guidelines, the grounds raised by counsel, the defendant's allocution, victim statements, other evidence, and the factors set forth in § 3553(a).  Booker does not contemplate that the court will somehow arrive at its sentence prior to sentencing, and requiring advance notice of "any ground" beyond the factors set forth in § 3553(a) would undoubtedly prove to be unworkable.

Related posts on post-Booker Rule 32(h) issue:

June 20, 2006 at 05:08 PM | Permalink


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As counsel for Mr. Banks, and despite my client not getting any relief, I do feel the Court got it right. The Circuit's Cooper decision, 437 F.3d 324, sets out the framework for sentencing - first up, no surprise, calculate the guidelines including any departures up or down. Then proceed to go through the 3553(a) factors. A "variance" from the properly calculated guidelines pursuant to a 3553(a) factor would not require notice. At oral argument, great pains were taken to have the Court set forth the difference beteween a departure and a variance. I am glad to see, in footnote 2, the Court adopting the 8th Circuit's defintion of a variance - a discretionary sentence post-Booker that is not based upon a specific Guidelines departure provision.
If you stop and think about it for a moment, Rule 32(h) not beign triggered on a variance still maintains some drama at sentencing and still maintains some discretion at sentencing for counsel to push your judge to were you want her to go. While I recognize that this exposes our client to a potential increased sentence, on balance, I will take the risk, and hold out hope the judge will enjoy playing judge and be receptive to arguments and testimony and documents presented at a sentencing hearing.

Posted by: | Jun 20, 2006 6:54:48 PM

Isn't the official caption of this case US v Vampire Nation a/k/a Banks? Why clean it up; it's too good to be true! Anyway, I do want to mention that the 3d Cir, copying Cooper, has once again misquoted sec 3553(a) with a footnote stating that the "relevant provisions" state ... and then quoting subsections (a)(1) through (a)(4), while omitting both the introductory "parsimony" clause and subsections (a)(5) through (a)(7) of the statute. I hope that someone catches the error and calls it to the panel's attention. (Perhaps our previous commentator, who says he is Banks' counsel, will at least write the panel a letter asking for this correction.) There is also an important (and erroneous) holding about the scope of criminal forfeiture for mail fraud in this case.

Posted by: Peter G | Jun 20, 2006 11:13:23 PM

peter g loves pointing out others' mistakes? well, here's my two cents: why is defense counsel conceding he/she was wrong? not seeking cert? also, prior to booker, didn't advance notice give the defendant notice that he needs to convice the court otherwise? something that is still relevant today, post-booker? other than the court's concern about elevating the guidelines to a position of importance that it can no longer enjoy, i think the court got it wrong, and now, poor vampire nation suffers.

Posted by: anony nonny | Jun 21, 2006 9:47:37 AM

I'd like an explanation about the "Vampire Nation" aspect of the case. I consider prosecutors' use of nicknames -- if that's the case here -- in indictments to be unfairly prejudicial. If Mr. Banks were a white Republican from the suburbs, with the nickname of "Chip" of "Biff," the prosecutor would not have included the nickname in the indictment. Our proper names are matters of legal record. Nicknames are not. The effort to use "fearsome" or, worse yet, "ghetto" nicknames in indictments, is simply part of over-zealous prosecutorial tactics that should be beneath honorable prosecutors. Judges, in particular, should not allow it.


Posted by: Mark | Jun 21, 2006 10:36:03 AM

I appreciate the comments. I'll try to respond/address each of them. As for Vampire Nation, that is the way the Notice of Appeal was drafted and then filed by my litigous client. The pleadings in the district court all were in proper form USA v. Frederick H. Banks. Conicidently, Vampire Nation is the name of my guy's band. In his 2nd trial, for essentially the same stuff he represented himself and was allowed to play some of his music during his speech of a direct examination. For those who are interested, various music wholesalers on the internet carry his very releases.
The concession was driven by a more critical review of the sentenicng hearing in preparation for oral argument. The court tied the increase to the 3553(a) factors, he did not even mention the guidelines during his discussion in this part of his sentence. For those who think the court is still required to give notice, I am reminded of the saying - be careful what you wish for. If notice is required for a variance, does that not require us to get all of our stuff to the sentenicng court a weeke ro so before sentencing. And by doing so you have now provided the government with all of your sentencing steam. Nothing is left for the hearing. We lose the last bit of discretion which remains.
The cert question is focused more on the big substantive issue in the opinion - in personam forfeiture money judgment for a generic mail fraud conviction when the statute says it must affect a financial institution.
Peter G you feel the court's forfeiture issue is wrong. I do also. What troubles you ?
The letter about the failure to quote the entire statute will be generated. Thanks for your eyes and your thoughts.

Posted by: David B. Chontos | Jun 21, 2006 7:09:43 PM

The Third Circuit on July 7th isssued an order in this case. It denied my request for the opinion to be amended as suggested by Peter G. The government's motion to amend was granted. A statutory reference to forfeiture was wrong. Instead of 21 USC 853 the original opinion said 18 USC 853.

Posted by: David B. Chontos | Jul 9, 2006 9:59:42 AM

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Posted by: | Oct 14, 2008 11:25:36 PM

Just to clear up why the case is captions as U.S. v. Vampire Nation-- it was captioned that way because Banks filed a notice of appeal with that caption and the Third Circuit adopted it. Nobody objected, so it remained that way.

Posted by: niggaornotdotcom | Mar 17, 2013 4:17:57 AM

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