New York Federal Criminal Practice Blog
September 10, 2007

No Notice required for Sentence Above Range Dictated by Policy Statements for Revocation of Supervised Release

The defendant in United States v. Hargrove, 2007 WL 2324008 (2d Cir., August 16, 2007), entered the courtroom thinking he was facing a sentence in the range of 3 to 9 months, only to learn unexpectedly that the judge intended to upwardly depart to 12 months, which she promptly did. Were it not for the fact that Hargrove was before the court on a violation of supervised release, as opposed to an initial sentencing upon conviction, his appeal would have been successful. Instead, the Second Circuit held to its pre-Booker precedent that a district court, acting on its own motion, is not required to give the defendant pre-hearing notice before imposing a sentence above the range recommended by the policy statements in the U.S. Sentencing Guidelines for revocation of supervised release. Pre-hearing notice continues to be required for sua sponte sentences above the Sentencing Guidelines in the context of the initial sentencing. See United States v. Cole, 2007 >WL 2263934 (2d Cir., August 9, 2007). Although acknowledging that since Booker, a harmonization has occurred between the respective sentencing schemes governing the initial sentencing and revocations of supervised release (i.e., both are advisory and subject to a "reasonableness" review on appeal), the Hargrove Court held that qualitative differences between the two proceedings still exist such that the protections and safeguards applicable at the initial sentencing do not apply in the revocation context. The only solace in the decision occurs in the final footnote, where the Court states "[t]hough notice is not mandatory, it is prudent to give such notice, especially in situations in which the court is relying on information that is either new or not obvious when determining the sentence."

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