Irizarry v. United States

2008-06-12

Headline: Court limits notice rule for non-Guidelines sentences, holding judges need not give advance warning before imposing a variance above a recommended sentencing range, affecting defendants and prosecutors nationwide.

Holding: Rule 32(h) does not apply to a variance from an advisory Guidelines range; district courts need not give advance notice before imposing such a variance.

Real World Impact:

Judges need not give advance notice before imposing a variance from advisory Guidelines.
Defendants may have less protection against unexpected higher sentences without prior notice.
Parties should use PSR rules or request continuances if surprised at sentencing.

Topics: federal sentencing, notice at sentencing, sentencing guidelines, criminal threats

Summary

Background

A man who sent threatening e-mails to his ex-wife pleaded guilty to making an interstate threat under federal law. The probation officer’s report recommended a 41-to-51 month prison term, but at sentencing the judge found the man intended to carry out the threats and imposed the 60-month statutory maximum and three years supervised release. Defense counsel objected that the judge never gave notice that she was considering an upward change from the recommended range.

Reasoning

The Court asked whether Federal Rule of Criminal Procedure 32(h), which requires notice before a court departs from a Guidelines range, also applies when a judge imposes a variance under the statutes that guide sentencing. The Court explained that Burns required notice when the Guidelines were mandatory, but after this Court made the Guidelines advisory the special expectation that produced that notice rule disappeared. The Court therefore held that Rule 32(h) applies to traditional Guidelines “departures” but does not impose a categorical notice requirement for variances from an advisory Guidelines range.

Real world impact

The Court affirmed the lower court and the higher sentence. The opinion emphasizes existing procedural protections — the presentence report deadlines, opportunities to object, and chances to speak at sentencing — and suggests judges can grant continuances when parties show prejudice from surprise. The decision resolves a split among appeals courts about whether Rule 32(h) covers variances and directs judges and counsel to rely on Rule 32’s other safeguards.

Dissents or concurrances

Justice Thomas agreed in a separate opinion. Justice Breyer (joined by three Justices) dissented, arguing Rule 32(h) should cover variances to protect procedural fairness.