Supreme Court - Defendants Not Entitled to Notice of Variance From Guideline Sentence
In Irizarry v. United States, (No. 06-7517), the Petitioner plead guilty in district court to making a threatening interstate communication to his ex-wife in violation of 18 U.S.C. § 875. Although the presentence report recommended a Federal Sentencing Guidelines range of 41-to-51 months in prison, the district court imposed the statutory maximum sentence—60 months in prison and 3 years of supervised release— rejecting the petitioner’s objection that he was entitled to notice that the court was contemplating an upward departure. The Supreme Court announced that defendants are not entitled to notice of a variance from the guideline sentence prior to sentencing.
The Eleventh Circuit had affirmed the sentence, reasoning that Federal Rule of Criminal Procedure 32(h), which states that “[b]efore the court may depart from the applicable sentencing range on a ground not identified . . . either in the presentence report or in a party’s pre-hearing submission, the court must give the parties reasonable notice that it is contemplating such a departure,” did not apply because the sentence was a variance, not a Guidelines departure.
The Supreme Court affirmed finding that the notice requirement of Rule 32(h) does not extend to a "variance" from the recommended guidelines range. According to the Supreme Court, "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 rule set forth in [Burns v. United States, 501 U. S. 129 (1991)], either through an interpretation of Rule 32(h) itself or through Rule 32(i)(1)(C)."
The Court adopted the use of the Eleventh Circuit's term - "variance" - in finding that there is a difference between a mandatory guidelines departure and a variance pursuant to the factors set forth in 18 U.S.C. § 3553. So, departures, the Supreme Courts says, were “a term of art under the Guidelines” and referred only to non-Guidelines sentences imposed under the framework set out in the Guidelines. A "variance" is any factor under section 3553 that may warrant a non-guideline sentence, and the defendant does not have a statutory, or constitutional right to be advised of every variance, although district court’s should be cautious in making certain that defendants have adequate notice.
So, departures are now a deceased creature of the guidelines era.
