At Sentencing: The U.S. District Court Judge Does Not Have To Warn The Defendant That He Intends To Vary From The Recommended Sentencing Range.

At Sentencing: The U.S. District Court Judge Does Not Have To Warn The Defendant That He Intends To Vary From The Recommended Sentencing Range.

Supreme Court of the United States

Richard Irizarry, Petitioner

-v-

United States

128 S. Ct. 2198

Decided June 12, 2008

Issue:

Whether the sentencing court must give the parties reasonable notice that it is contemplating a departure from the applicable sentencing range on a ground not identified for departure in either the presentence report or in a party’s prehearing submission as stated in Rule 32(h) of the Federal Rules of Criminal Procedure and whether this Rule applies to every sentence that is a variance from the recommended Federal Sentencing Guidelines range even though not considered a departure as hat term was used when Rule 32(h) was enacted.

Holding:

held that criminal procedure rule requiring notice that the court is contemplating a departure from the recommended guideline sentencing range on a ground not identified for departure either in the presentence report or in a party’s prehearing submission, is not applicable to a variance from the recommended range.

Facts:

Petitioner, Richard Irizarry, pleaded guilty to one count of making a threatening interstate communication, in violation of 18

U.S.C. § 875(c). Petitioner made the following admissions in the factual resume accompanying his plea: (1) On November 5, 2003, he sent an e-mail threatening to kill his ex-wife and her new husband; (2) he had sent “dozens” of similar e-mails in violation of a restraining order; (3) he intended the e-mails to “convey true threats to kill or injure multiple persons”; and (4) at all times he acted knowingly and willfully. App. 273–275.

The presentence report (PSR), in addition to describing the threatening e-mails, reported that petitioner had asked another inmate to kill his ex-wife’s new husband. Brief for United States 6. The PSR advised against an adjustment for acceptance of responsibility and recommended a Guidelines sentencing range of 41–to–51 months of imprisonment, based on enhancements for violating court protective orders, making multiple threats, and intending to carry out those threats. Brief for Petitioner 9. As

possible grounds for a departure, the probation officer stated that petitioner’s criminal history category might not adequately reflect his “ ‘past criminal conduct or the likelihood that [petitioner] will commit other crimes.’

Petitioner pleaded guilty to making a threatening interstate communication to his ex-wife, in violation of federal law. Althoughthe presentence report recommended a Federal Sentencing Guidelines range of 41–to–51 months in prison, the court imposed the statutory maximum sentence—60 months in prison and 3 years of supervised release—rejecting petitioner’s objection that he was entitled to notice that the court was contemplating an upward departure.

The court imposed a sentence of 60 months of imprisonment to be followed by a 3–year term of supervised release. Id., at 375. Defense counsel then raised the objection that presents the issue before us today. He stated, “We didn’t have notice of [the court's] intent to upwardly depart. What the law is on that now with—,” to which the Court responded, “I think the law on that is out the window …. You had notice that the guidelines were only advisory and the court could sentence anywhere within the statutory range.”

Legal Analysis:

The Courts Of Appeals May Apply A Presumption Of Reasonableness To A  Within Guidelines Sentence.

Rule 32(h) of the Federal Rules of Criminal Procedure, states that “[b]efore the court may depart from the applicable sentencing range on a ground not identified for departure either in the presentence report or in a party’s prehearing submission, the court must give the parties reasonable notice that it is contemplating  such a departure.” The question presented by this case is whether that Rule applies to every sentence that is a variance from the recommended Federal Sentencing Guidelines range even though not considered a “departure” as that term was used when Rule 32(h) was promulgated.

The Sentencing Court Can Not Presume The Guidelines Sentence To Be Reasonable, But Must Follow A Process In Determining The Sentence

 

At the time of our decision in Burns, the Guidelines were mandatory; Any expectation subject to due process protection at the time we decided Burns that a criminal defendant would receive a sentence within the presumptively applicable guideline range did not survive our decision in United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L.Ed.2d 621 (2005), which invalidated the mandatory features of the Guidelines. Now faced with advisory Guidelines, neither the Government nor the defendant may place the same degree of reliance on the type of “expectancy” that gave rise to a special need for notice in Burns. Indeed, a sentence outside the Guidelines carries no presumption of unreasonableness.

 

The due process concerns that motivated the Court to require notice in a world of mandatory Guidelines no longer provide a basis for this Court to extend the rules et forth in Burns either through an interpretation of Rule 32(h) itself or through Rule 32(i)(1)(C).

The notice requirement set out in Burns applied to a narrow category of cases. The only relevant departures were those authorized by 18 U.S.C. § 3553(b) (1988 ed.), which required “an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.” That determination could only be made based on “the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission.” I bid. And the notice requirement only applied to the subcategory of those departures that were based on “a ground not identified as a ground for … departure either in the presentence report or in a pre-hearing submission.” 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).

The Supreme Court found that rule 32(i)(1)(C) requires the sentencing court to allow the parties to comment on matters relating to an appropriate sentence and that it would be better for the sentencing court to wait for the parties to have made their presentations prior to sentence.  However, the Court stopped short of requiring that a special notice is required whenever a judge is contemplating a variance because this may create unnecessary delay and a judge finding that a variance is appropriate would be forced to continue the sentencing hearing.