Posted on June 15, 2008 by Thomas Withers

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.

 

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Posted on March 4, 2008 by Anthony Lake

McBride & Other Post-Gall Eleventh Circuit Decisions

 

 

The Eleventh Circuit’s decision in United States v. Pugh, No. 07-10183, 2008 WL 253040 (11th Cir., January 31, 2008) is interestingly at odds with the result in its decision in United States v. McBride, 511 F.3d 1293, 1296 (11th Cir. 2007), decided about a month before Pugh.

In McBride, in which the Court of Appeals affirmed the district court’s downward departure from a recommended Sentencing Guidelines range of 151 to 188 months to impose an 84-month sentence on the defendant, who pled guilty to distributing child pornography, because the defendant’s father had been murdered, the defendant had been physically and sexually abused as a child, suffered from various health problems and had enrolled in a sexual treatment program.

Although the Court did not cite Gall, it rejected the government’s argument on appeal that “although the district court discussed many of the [18 U.S.C.] § 3553(a) factors, it failed to give proper weight to some while overemphasizing others,” id. at 1297, holding that the Court:

[W]ill only reverse a procedurally proper sentence if we are “left with the definite and firm conviction that the district court committed a clear error of judgment in weighing the § 3553(a) factors by arriving at a sentence that lies outside the range of reasonable sentences dictated by the facts of the case,”

id. Similarly, a string of post-Gall, unpublished, decisions of the Court of Appeals prior to Pugh accorded substantial deference to sentencing courts’ decisions as to which factors under § 3553(a) to base a sentence upon, and the weight to be given a particular factor. See United States v. Mole, No. 07-12266, 2008 WL 216082, *2 (11th Cir., January 28, 2008) (unpublished) (“[N]othing in Bookeror elsewhere requires the district court to state on the record that it has explicitly considered each of the § 3553(a) factors or to discuss each of the § 3553(a) factors”); United States v. Kivett, No. 07-10202, 2008 WL 185502, *6 (11th Cir., January 23, 2008) (unpublished) (“The district court need not recite a laundry list of the § 3553(a) factors; rather, some indication in the record that the court adequately and properly considered the applicable advisory Guidelines range and the § 3533(a) sentencing factors is sufficient”); United States v. Ramirez, No. 07-13060, 2008 WL 185509, *2 (11th Cir., January 23, 2008) (unpublished) (“‘The weight to be accorded any given § 3553(a) factor is a matter committed to the sound discretion of the district court[,]’ and we ‘will not substitute our judgment in weighing the relevant factors because ‘our review is not de novo’”); United States v. Arneto-Anaya, No. 07-12427, 2008 WL 142022, *2 (11th Cir., January 16, 2008) (unpublished) (same); United States v. Caisano-Guapi, No. 07-13520, 2008 WL 114878, (11th Cir., January 14, 2008) (unpublished). However, unlike McBride or Pugh, these cases involved sentences within the recommended Guidelines ranges, or upward departures or variances.
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