First Circuit weighs in on Rule 32(h) issue soon to be addressed by SCOTUS

As noted just earlier today, 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.  Perhaps just to give us all some exciting pre-game reading, the First Circuit today issued an en banc opinion on this issue in US v. Vega-Santiago, No. 06-1558 (1st Cir. Feb. 21, 2008) (available here).  Here is a opening paragraph from the majority opinion:

The question before us is whether a district court, before sua sponte imposing a sentence outside the recommended guideline range, must automatically provide advance notice to the parties of its intent to do so and its contemplated reasoning. The circuit courts being divided,1 the Supreme Court is now likely to decide the issue, United States v. Irizarry, 458 F.3d 1208, 1212 (11th Cir. 2006), cert. granted, 2008 U.S. LEXIS 409 (Jan. 4, 2008) (No. 06-7517), but until it does, district judges in this circuit are entitled to guidance on an issue potentially present in every sentencing.  Our answer is that notice is sometimes, but not always, required.

Not only are there two lengthy dissents, but these paragraphs from Judge Torruella's dissent suggests that not all is well in the land of the First Circuit:

Although I am in substantial agreement with the views expressed by Judge Lipez in his excellent dissent, I am also deeply concerned by the serious policy, procedural, and substantive issues raised by the unwarranted haste which has characterized this en banc proceeding. Accordingly, I must state my views, even if in a preliminary and incomplete fashion.

The convocation of this particular en banc proceeding highlights the whimsical and uneven manner in which this circuit often applies the rehearing rules. Indeed, both the granting and denying of petitions for these extraordinary proceedings evince a double-standard with respect to which issues are deemed meritorious of such review.  See, e.g., Cerqueira v. American Airlines, No. 07- 1824 (1st Cir. XXXX) (Torruella, J. dissenting).  Time constraints do not allow for an exhaustive inventory of this asseveration, but the circumstances of this present appeal demonstrate one such example.