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."