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June 12, 2008

Irizarry is interesting, but is it important or just iterant?

The three short opinions in Irizarry are all quite interesting (basics here), though I am not sure upon first read whether the ruling is very important or just a review of matters established by modern Booker progeny like Gall and Kimbrough.  Here is key language from the majority opinion by Justice Stevens that serves to emphasize the departure/variance distinction:

“Departure” is a term of art under the Guidelines and refers only to non-Guidelines sentences imposed under the framework set out in the Guidelines....

Although the Guidelines, as the “starting point and the initial benchmark,” continue to play a role in the sentencing determination, see Gall, 552 U. S., at ___ (slip op., at 11), there is no longer a limit comparable to the one at issue in Burns on the variances from Guidelines ranges that a District Court may find justified under the sentencing factors set forth in 18 U. S. C. §3553(a) (2000 ed. and Supp. V).

In turn, Justice Breyer in dissent fights against making a big deal about the departure/variance, though he does so primarily to continue his effort to promote the primacy of the guidelines.  And Justice Alito's silence in this case is an especially notable component of the division among Justice still fighting over the Booker's meaning and impact (including Justice Thomas, who write again to attack the Booker remedy).

So, dear readers, as I take time for a second look, do you think Iriazarry is important or just iterant?

June 12, 2008 at 11:11 AM | Permalink


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Tracked on Jun 12, 2008 6:49:20 PM


Only important in the sense that it clearly delineated the difference between a departure and a variance. But it may be that some judges have avoided imposing a variance sentence because they had failed to give notice to the parties of their intention to do so. This ruling gives them more power to comport with the freedom they were granted by Booker, Gall, etc.

Posted by: Steve | Jun 12, 2008 12:09:57 PM

As I alluded to in a previous post, I think the opinion is important insofar as it is another example where the majority (and, in this case, even the dissent) of the Court is saying: THESE THINGS ARE ADVISORY, and we mean it! (Maybe that makes it both important and iterant?)
This point can be seen by one key difference between how the majority and minority viewed the Guideline-world.

Justice Breyer still refuses to accept that the Guidelines he helped create were really all that inflexible. The majority points out that "there is no longer a limit . . . on the variances from Guidelines ranges that a District Court may find justified under the sentencing factors set forth in 18 U. S. C. §3553(a)" (slip op. at 6). In response, Breyer disagrees with the “no longer” part of that statement, rhetorically asking “Is that so?,” and posits that courts “have always been free to depart.” (slip dissent at 4).

What this back-and-forth shows is that the majority believes notice is not required because the entire statutory range is now (stressing now) available, and the parties know it. The minority believes notice is required because precedent says so, and that precedent comes from a time, not unlike post-Booker, where the district court had discretion to sentence outside the Guidelines.

In essence, everyone (except Thomas) seems to agree that great discretion must be available to sentencing courts. And that is what is important (and also iterant?) about Iriazarry.

Posted by: DEJ | Jun 12, 2008 1:37:06 PM

will there be fewer gov appeals?

Ds waive appeal per plea agreements of 'harsh' sentences, which gov determines.

gov appeals 'lenient' sentences, which gov determines [and in which gov may prevail in appellate courts for precedential power]. why do these variance appeals if the only issue is now whether the trial judge abused his/her discretion in denying the unprepared AUSA a continuance of the sentencing hearing because surprised by the judge's first choice of sentence, or, after such a continuance, did/didn't change it to gov's liking.

[departures, on the other hand, are always either downward with gov's consent or are upward to gov's liking.]

i'm a defense lawyer.

Posted by: barry | Jun 13, 2008 8:32:41 AM

Entirely consistent with Booker. In the daily lives of folks facing judges in the hard-sentencing districts where some judges are using their new-found discretion to hammer defendants, maybe not such good news on a practical level. Stevens gives lip service to the better practice of notice, but that has no teeth. In some respects, Irizarry was the easy case–the judge varied on the facts all parties knew were operational sentencing facts. What about the case where the judge pulls out unanticipated facts and propositions that require challenges, both factual and legal? Certainly, ask for a continuance. If it is denied, review is on an abuse of discretion standard. Making the record that the facts or legal propositions relied upon by the sentencing judge are bogus may be difficult if the attorney is blind-sided.

Posted by: TES | Jun 13, 2008 12:07:29 PM

The case is neither important nor interesting. We already knew from Gall and Kimbrough that neither party has the right to count on anything that even looks like a guidelines sentence. This just confirms that.

Why on earth would a party think that he has a right to notice that the judge might depart (or vary) from a sentence he has absolutely no obligation to impose to begin with?

I suppose the Court had to take the case to make it official that its earlier Burns decision was a dead letter, but otherwise it was a waste of time. The Court should return to its more normal and important business of cow-towing to al Qaeda.

Posted by: Bill Otis | Jun 13, 2008 7:49:53 PM

Why "would a party think that he has a right to notice that the judge might depart (or vary) from a sentence he has absolutely no obligation to impose to begin with?" Because one of the advantages of a guidelines system---often touted by the Commission and other advocates of sentencing reform--is increased transparency and due process at sentencing. There is no reason for this advantage to be lost in a switch from presumptive to advisory guidelines. We need not return to a system, like that of the discretionary era, when sentences emerged from the "black boxes" of judges' heads, without an opportnity for counsel to intelligently comment on the bases for the sentence. Irizarry takes a step back from this progress.

Posted by: pjhofer | Jun 14, 2008 2:02:16 PM


I agree that giving notice is the better practice, for the reasons you state. But the question before the Court was whether a party has a legal right to such notice, now that the guidelines are advisory. The Court's answer made sense.

I'll have to say this about where we are on sentencing: Having taken a giant step backward toward arbitrariness in Booker, at least the Court hasn't backed away from the implication of Booker's holding, and therefore is making it clear that advisory really means advisory, and arbitrary really means arbitrary.

For consistency, they get an A. For advancing the rule of law in sentencing, they get an F.

Posted by: Bill Otis | Jun 14, 2008 11:02:10 PM

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