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January 7, 2008

More on Irizarry and notice requirements after Booker

Though lost in all the death penalty action, last Friday the Supreme Court granted cert on an important post-Booker issue in Irizarry v. United States (06-7517).  SCOTUSblog here provides the opinion below and the cert papers, and this is the question presented as set forth by the government's brief in opposition:

Whether Federal Rule of Criminal Procedure 32 requires a district court to give the parties advance notice before imposing a sentence outside the applicable advisory Sentencing Guidelines range based on the criteria in 18 U.S.C. 3553(a), when the grounds for the non-Guidelines sentence are not identified in the presentence report or the parties’ prehearing submissions.

As regular readers know, this issue has sharply divided circuit courts and there are pretty sound arguments to be made on both sides of this issue in light of Booker's transformation of the guidelines from mandatory to advisory. 

Intriguingly, though, it seems that both the defendant here and the government believe that Rule 32 should be read to require a district court to give advance notice to the parties about possible grounds for imposing a non-guideline sentence.  Thus, it is unclear whether and how the Justices will get briefing in support of the position that no notice is required (though these arguments are pretty well developed in lower court opinions).

Some related posts on this issue in Irizarry:

January 7, 2008 at 11:57 PM | Permalink


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If a guideline sentence is presumed, how can a plea be knowing and intelligent when the sentence results in an above guideline sentence? This smacks of suckering someone into coping a plea, saving the cost of a trial, then SURPRISE!

Posted by: George | Jan 8, 2008 12:41:05 AM

lol. You're right, of course. Welcome to the dark side. Welcome to the Justice Department.

Posted by: babalu | Jan 8, 2008 9:26:53 AM

The Courts of Appeals on the Irizarry side of the circuit split did not blindly find their way there. They were led there (sometimes like sheep) by the arguments made by DOJ in its legal briefs. You'd think that someone at the SG's office would send the word out what the official position is.

(This is strangely similar to what happened in Kimbrough, where the SG's office conceeded that sentencing judges could indeed disagree with the Guidelines' policy -- just not the crack/cocaine policy. That position, to my knowledge, had never been advanced by the DOJ in any lower court.)

Posted by: | Jan 8, 2008 9:43:14 AM

I know that at least in some of the Rule 32(h) cases, the Government did indeed argue that it applies to variances. They argued, however, the error was harmless. They might have taken that position in all the cases -- I'm not sure.

Posted by: Confused | Jan 8, 2008 10:25:38 AM

For those who may be interested, the Harvard Law Review published a case note on this issue last spring. I remember thinking that the note was pretty good whan I read it. Here's the link:


Posted by: c.hessick | Jan 8, 2008 11:25:42 AM

What I find most interesting about the Rule 32 issue is the fact that Rule 32 does not apply to supervised release revocations.

Courts have long held that because Chapter 7 is advisory, Rule 32 does not apply when courts go outside the Chapter 7 requirements. But the same courts have also said Rule 32 does apply to variances. See US v. Redcap, 505 F.3d 1321, 1322 (10th Cir. 2007) ("This court recognizes that the rationale underlying Burdex, i.e. notice is not required because Chapter 7 is advisory, is somewhat in tension with our holding in Atencio[, i.e. that notice is required for variances].").

The Court makes an attempt to reconcile these divergent conclusions, but the result seems to imply that Guidelines Chapters 2-5 are "less advisory" than Chapter 7.

Posted by: DEJ | Jan 8, 2008 3:55:08 PM

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