Eleventh Circuit deepens Rule 32(h) circuit split

Jumping into a circuit split that the Supreme Court may eventually have to resolve, the Eleventh Circuit today in US v. Irizzary, No. 05-11718 (11th Cir. Aug. 1, 2006) (available here) decided that "the district court was not required to give Defendant advance notice before imposing a sentence above the advisory guidelines range based on the court's determination that sentences within the advisory guidelines range did not adequately address section 3553(a) sentencing factors."

By my rough count, four circuits have now formally held that Rule 32(h) does not apply to Booker variances (the 3d, 7th, 8th and 11th), and three have held that Rule 32(h) does apply to Booker variances (the 2d, 4th, and 9th).  I had previously thought that this split would be resolved by the group that drafts the Federal Rules of Criminal Procedure, because I had heard a post-Booker amendment to Rule 32(h) was in the works.  But, rumor has it that such an amendment may not be forthcoming, and thus the Supreme Court might have to resolve this interesting and important notice issue.