New York Federal Criminal Practice Blog
June 14, 2008

Supreme Court Holds that Sentencing Court Need Not Give Advance Notice of a Plan to Grant Variance (as Opposed to Departure) from the Guidelines

With a gloved hand, the Supreme Court ruled this week that because the Sentencing Guidelines are advisory, a sentencing judge need not give advance notice to the defendant if s/he plans to deviate from those Guidelines in imposing sentence based on a factor that was is not a traditional ground for Guidelines departure.  

The opinion in United States v. Irizarry, 06-7517, 2008 WL 2369164 (2008), turned on what is increasingly becoming an anachronistic distinction in federal sentencing - between "departures" - a term of art that refers to non-Guidelines sentences imposed under the framework set out in the Guidelines - and "variances," which essentially consist of all other deviations from the Guidelines.  (Many district judges cling to departure analysis, because they love the comfort and rigidity of the Guidelines, and the similar comfort and strictures of traditional departure analysis.)
Under Fed.R.Crimp.P. Rule 32(h) - adopted to reflect the Court's decision in United States v. Burns, 501 U.S. 129 (1991), the sentencing court must give advance notice if it plans to depart from the applicable Guidelines range based on a ground "not identified for departure either in the presentence report or in a party's prehearing submission."  In Irizarry, the Court held that since the Guidelines are now advisory as a result of its opinion in Booker, such notice is superfluous with regard to "variances" since all parties are on notice that a non-Guidelines sentence is a distinct possibility.  The Court goes on to point out, in a statement that should be quoted in all future sentencing memoranda: "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. ยง 3553(a)."

But the metal of the decision is the Court's rejection of notice requirements where a sentencing court decides to deviate from the Guidelines on more expansive "variance" rather than "departure grounds.  It's one thing to reject notice requirements in a case like Irizarry, where any experienced defense lawyer would know that facts existed justifying an upward departure (the defendant had engaged in a series of menacing communications towards and regarding his ex-wife).  But to the extent the sentencing court deviates on an unanticipated factor, as the dissent points out, notice "would promote 'focused, adversarial' litigation" (citation omitted) and is only likely to precipitate a continuance in the rare case "where a party would adduce additional evidence or brief an unconsidered legal issue."  Given the expansiveness of variance grounds, notice of an unanticipated variance becomes all the more necessary. 

Practically speaking, this decision is only directly relevant to a smattering of cases.  The bigger issue is whether this case is the harbinger of the collapse of the questionable distinction between departures and variances (a "distinction without a difference," as Justice Breyer notes in his dissent).  

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