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March 25, 2008

Will Irizarry finally explain the true nature of the post-Booker world?

I have mentioned before that I think the sleeper SCOTUS sentencing case this term in Irizarry, which technically addresses a seemingly little issue concerning notice for imposing sentences outside the guidelines. However, as revealed in the amicus brief supporting the Eleventh Circuit's ruling below (to which I contributed), the case presents an opportunity for the Justices to address more broadly the nature and status of departures and variances in the post-Booker world.  This amicus brief can be downloaded below, and here is the start of the summary of argument which highlights the deep conceptual issues that the Justices might have to address in Irizarry:

Federal Rule of Criminal Procedure 32 does not require a district court to provide notice prior to imposing a sentence outside the range recommended by the advisory Guidelines based on the factors set forth in 18 U.S.C. § 3553(a).  Neither provision of Rule 32 relied upon by Petitioner — Rule 32(h) or Rule 32(i)(1)(C) — supports a notice requirement in this context.

Petitioner’s reading of Rule 32(h) cannot be squared with the rule’s plain language, with speaks repeatedly and exclusively in terms of departures. Departures and variances are fundamentally different sentencing devices: departures depend on facts not adequately taken into account by the Sentencing Commission; variances depend on reasoned judgments based on the considerations set forth in Section 3553(a) by Congress.  In light of the fundamental distinction between a departure and a variance, the notice rule for departures has never been, and should not now be, extended to variances.

Download irizarry_amicus_brief.pdf

March 25, 2008 at 11:10 AM | Permalink


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Not trying to be smartalecky - instead asking an honest question (or more precisely, making a tentative assertion in the form of a question, but open to being convinced): Wouldn't a ruling for Irizarry lessen the number of "sentencing mistakes" you are so often concerned about (as in post just down the page), since it would lead to better-informed sentencing judges? If that is so, I would have thought you would be more likely to weigh in on the other side.

Posted by: Sam Heldman | Mar 25, 2008 11:39:17 AM

Sam, you may want to read the brief. Although I too came in thinking the notice rule was probably a good idea, the brief does an effective job of pointing out the flaws inherent in importing this Guidelines-based concept into the post-Booker world of variances.

How much notice would be sufficient? Hours before the hearing? One day? Given that busy district judges sentence often sentence multiple defendants in one week, a notice requirement would likely curb the number of variances they impose, if they have to review files much earlier in advance & provide this early notice. And, at this point, doesn't everybody know that 3553(a) gives DJs the authority to vary anyway?

Further, the brief argues that requiring notice of varying from the GLs simply [unduly] reinforces the GL's importance as the "starting point" of the sentencing decision.

It should be an interesting case...

Posted by: Reader | Mar 25, 2008 11:53:07 AM

I did read the brief, and it is well done. (Not surprising!) I find it unconvincing, though, when it suggests that other mechanisms are adequate to avoid true judicial surprises and mistakes. (District Court abused its discretion in denying continuance? A very unlikely holding in most Circuits, I believe, at least where Defendant is Appellant).

Maybe, though, I am working from a misunderstanding of the "problem." To my eye, the real question is - what harm is there, vs. what benefit is there, to requiring a District Judge to give *some* notice before sentencing above Guidelines range, *when the USA hasn't even contended that an above-range sentence is "necessary" under 3553*. We are talking (aren't we?) only of those cases in which the District Judge is doing something that even the Government recognizes would violate the parsimony principle. I think that a little bit of "slow down, Judge" is a good thing in those cases.

I recognize that the holding, whatever it is, will apply to downward variances too - but surely it is quite rare for a Judge to impose a sentence below what the defense has asked for?

Posted by: Sam Heldman | Mar 25, 2008 2:45:59 PM

Unlike Sam, I haven't had time to read the brief yet (damned crack cases!), but I share his conclusion. The reality on the ground, still, is that sentencing is Guideline guided and focused. If neither party argues for a variance in pre-sentencing pleadings, how does it serve the goal of imposing a sentence that complies with all the 3553(a) factors to let the court go off on its own? Also, as an appeals guy, it's a good way to make sure the record is clear on (1) the legal basis for the variance and (2) the evidence that supports it.

In a post-_Gall_ world, variances are going to more easily survive appellate review. Is it too much to ask that everybody takes the time to do it right at the district court level?

Having said that, I reserve the right to have my mind changed when I actually finish the brief. :-)

Posted by: JDB | Mar 25, 2008 3:46:07 PM

This strikes me as a curious question that only someone with nothing else to do would raise. When a legislature establishes the range within which a person may be punished for a particular criminal offense, doesn’t that constitute notice? The Federal Guidelines are advisory and are concerned with the sentencing range recommended by a Sentencing Commission, not the range specified by a legislature. When a legislature prescribes a sentencing range before the fact, obviously they have the full range of facts in mind that may have a bearing on punishment.

Posted by: Tom McGee | Mar 25, 2008 4:14:59 PM

This strikes me as a curious question that only someone with nothing else to do would raise.

Or a lawyer for someone who's been convicted of a crime and would make every conceivable argument available to make the resulting sentence as low as possible...

in other words, the appellate defense bar.

It's not a dumb question. Justice Breyer's opinion in Booker made a huge mess, and this is one of the last bits that the Supreme Court is cleaning up. When the Guidelines were enacted, all of the surrounding law, including the "parsimony" provision of 3553(a) and the Rules of Criminal Procedure were written with the assumption that the Guidelines were mandatory.

Now that the Guidelines are advisory, some of that surrounding law is difficult to apply. And if courts follow the "reasoning" in Justice Breyer's Booker opinion, they're supposed to figure out what Congress would have done and just make stuff up as they go. IIRC, courts of appeals have come to different conclusions on this question.

Prof. Berman's argument in the amicus brief urges following the letter of the Rule, which would make the Rule itself a nullity in practice (which is the right result, I think). The argument on the other side argues for preserving the "spirit" of the rule, but the flaw in that argument is that it's hard to determine what's left of the "spirit" of a rule that was written to function as part of a mandatory Guidelines regime. Extending Rule 32(h) to so-called Booker variances will further entrench the Guidelines as mandatory in practice.

Posted by: | Mar 25, 2008 4:36:58 PM

Don't forget that Rule 32 was amended to include the notice requirement in response to the Supreme Court's decision in Burns v. United States. There was no notice requirement in Rule 32's plain language prior to Burns. Nevertheless, the Supreme Court gleaned the notice requirement from the remainder of Rule 32 and applied the doctrine of constitutional avoidance in order to avoid deciding whether due process required notice of a court's intent to depart from the then-mandatory guidelines. The plain language argument has less force in light of this background. Also, there is a strong policy argument to be made in favor of notice. In Booker and its progeny (Rita, Gall), the Supreme Court stressed the continued need for appellate review of sentences so that the Sentencing Commission can continue to do its work amending and updating the guidelines to reflect sentencing realities. Appellate review is less meaningful if the issues have not been fully litigated in the trial court. Notice is crucial to ensure that the issues are fully litigated.

Posted by: defender | Mar 25, 2008 4:57:16 PM

Notice is crucial to ensure that the issues are fully litigated

No it's not. After Gall and Kimbrough, if not after Booker, parties are now on notice that the Guidelines are truly advisory and that the sentencing court may give any sentence between the statutory minimum and maximum that it feels is sufficient but no greater than necessary in light of the factors set out in sec. 3553(a).

The Burns argument retains some force in light of the fact that "variances" appear to be rare in practice, much like (though not exactly like) departures were under the mandatory Guidelines. But as I say in the previous paragraph, the parties already have the notice that due process would seem to require.

The appellate review function is facilitated by the requirement that the sentencing court explain its reason for imposing the sentence it did, and the sentencing court address any nonfrivolous argument made by either the defendant or the prosecutor regarding the sentence.

Posted by: | Mar 25, 2008 7:18:44 PM

Wasn't this guy sentenced long before SCOTUS decided Gall and Kimbrough? If so, then why do they matter to this case? Wasn't this sentence handed down in the pre-Gall/Kimb. world, where most appellate courts (and, I think, district court judges) treated the Guidelines as essentially mandatory, even though they weren't? If that's the case, then it seems that the sentencing court owed the defendant some notice if it was going to depart from the presumptive range, since at the time of the sentencing Booker hadn't really changed anything.

Posted by: Anon | Mar 25, 2008 8:27:18 PM

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