Is a district court required to provide a defendant with notice of its intent to depart from the sentence range established by the United States Sentencing Guidelines, if the grounds for departure are not identified in either the presentence investigation report or the Government's presentencing hearing submissions?
In 2001 Leah Smith obtained a divorce from and restraining against her former husband, Richard Irizarry, for spousal abuse. Between the divorce in 2001 and 2003, Irizarry sent Ms. Smith 255 e-mails, several threatening to kill Ms. Smith and her family. In 2003, Irizarry was arrested. Irizarry pleaded guilty to making threatening interstate communications to his ex-wife. As a result, he was sentenced to sixty months imprisonment, a sentence nine months longer than the maximum sentence recommended by Federal Sentencing Guidelines. The district court sentenced Irizarry to the maximum amount of time allow under the statute, because of the likelihood Irizarry would continue threatening his ex-wife. Irizarry objected to the sentence because the court failed to give advance notice of its intent to depart upward from the sentencing guidelines as required by Federal Rules of Criminal Procedure 32(h) ("Rule 32(h)"). On appeal, the Eleventh Circuit Court of Appeals upheld the sentence, determining that Rule 32(h) does not apply to such sentence variances. In the Supreme Court, Irizarry argues that his sentence should be overturned because Rule 32(h) requires a district court to give the parties notice any time it intends to depart from the sentencing range recommended by the Federal Sentencing Guidelines, on a ground not previously identified in the presentence report or a government submission.