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.
Questions as Framed for the Court by the Parties
In this case, the Supreme Court will consider what notice a defendant must receive when a court imposes a sentence outside of the range recommended by the Federal Sentencing Guidelines. The Eleventh Circuit Court of Appeals upheld that the district court's decision to increase Irizarry's sentence on grounds not contained in the presentence reports or in the party's prehearing submissions, even though the court had not provided notice to the parties of its intent to depart from the Guidelines. Irizarry appealed this decision, arguing that Federal Rule of Criminal Procedure 32(h) ("Rule 32(h)") and the Court's holding in Burns v.
The United States, which prosecuted Irizarry and opposed his position in Court of Appeals, is now also arguing that a sentencing court must give notice before departing from the Guidelines sentence on grounds not previously noticed. Consequently, the Supreme Court appointed an attorney to argue in favor of the Eleventh Circuit's decision ("Eleventh Circuit's representative"). .
Departures and Variances: Is one of these things not like the other?
Much of parties' arguments hinge on whether there is a difference between a court sentencing outside of the Guidelines sentence range based on 18 U.S.C. 3553(a) versus doing so based on 18 U.S.C. § 3553(b). Sentences imposed under Section 3553(a) are often referred to as "variances," and represent a court's reasoned judgment in its application of the Section 3553(a) factors to the facts of the case. Section 3553(a) factors include such things as the nature of the crime, crime deterrence, protection of the public, and the need to provide restitution to the victim. § Sentences imposed under Section 3553(b) are generally referred to as "departures." Section 3553(b) allows courts depart from Guidelines sentences when they find there are "aggravating or mitigating circumstance" not adequately considered by the Guidelines. §
The Eleventh Circuit's representative argues that "departure" and "variance" have distinct, precise legal
The United States and Irizarry both argue that the plain language of Rule 32(h) indicates that court must provide notice when sentencing outside of the Guidelines range on grounds not previously identified, regardless of whether that sentence is characterized as a departure or variance. §They argue that "departure" ordinarily means any "divergence or deviation from a rule" and therefore encompasses what the Eleventh Circuit labeled a "variance." The United States further notes that the Court has used the terms departure, variance, and deviation interchangeably when referring to sentences imposed under Section 3553(a). Therefore, it argues that Section 3553(a) "variances" constitute "departures" governed by Rule 32(h)'s notice requirement.
Burns and the Impact of Booker
Irizarry and the United States argue that under the Court's reasoning in Burns v.
The Eleventh Circuit's representative argues that after Booker, parties should know that a district judge will consider the Section 3553(a) factors, effectively placing them on notice of the potential for variance. He argues that there is no unfair surprise because the parties' knowledge of the important facts and arguments in their case alerts them to what section 3553(a) factors the judge might consider. In those rare cases where there is
Irizarry and the United States disagree that Booker places parties on notice of a potential variance. They argue the opposite - that it increases the need for specific notice because it "exponentially expanded" the potential reasons for departure.
Irizarry maintains that if the Court finds that Rule 32(h) does not require notice before a court imposes a non-Guidelines sentence on grounds not previously identified, it will raise and force the Court to deal with the question it avoided in Burns: whether due process requires such notice. Irizarry implies that should the Court address this question, it must find that due process requires notice based upon the Court's prior holding in Townsend v. Burke. The United States, though maintaining that due process does not require a court to provide notice in this situation, also encourages the Court to apply the principle of constitutional avoidance and construe Rule 32(h) to require notice. The principle of constitutional avoidance provides that where an "otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress."
The Eleventh Circuit's representative argues that concerns about due process do not merit extending Rule 32's notice requirement to Section 3553(a). He argues that principle of constitutional avoidance does not apply because Rule 32(h) is unambiguous and does not allow multiple interpretations. Further, he contends that due process concerns are not implicated because historically, the Court has imposed few restraints on discretionary sentencing practices. The Eleventh Circuit's representative also argues that if the Court finds that due process requires notice before discretionary sentencing, it will raise federalism concerns by interfering with some state sentencing systems.
What Should be Done with Irizarry's Sentence?
Irizarry argues that the district court's failure to provide him reasonable notice of its intent to depart from the Guidelines sentence was not harmless error, but prejudicial error, and therefore he should be granted a new sentencing hearing.
The United States argues that Irizarry's sentence should be upheld because the district court's failure to provide notice was harmless error. It argues that since the harmless-error analysis should only address the district court's violation of Rule 32 and not the due process issue, the Court should apply a lower standard of review, asking only whether it is "highly probable" that the failure to provide notice had a "substantial and injurious effect or influence." The United State argues that Irizarry has not shown he would have done anything differently if he had notice the court was considering his future dangerousness under the Section 3553(a) factors as a basis for
The Eleventh Circuit's representative maintains that a harmless error review of a district court's sentencing decisions is unworkable. He argues that harmless error review of lack of notice is "inherently" speculative; first, because it is based on a parties' arguments about claims they "would have presented" given notice, and second, because it requires an appellate court to inquire into a district court's individual thought process had notice been given and the parties had responded. The Eleventh Circuit's representative asserts that existing procedural mechanisms such as continuances, supplement briefing, and appellate review for unreasonableness, are sufficient to protect defendants from unfair surprise in sentencing decisions.
Irizarry is one of multiple cases to which the Supreme Court has granted cert this term that touch on the scope and application of the Federal Sentencing Guidelines (the "Guidelines") post Booker v. United States. Earlier in the term, the Court heard both Kimbrough v. United States and Gall v. United States, determining that district courts could impose sentences departing downward from the Guidelines suggested range. On the same date as Irizarry's oral argument, the Court will hear Greenlaw v. United States. The issue in Greenlaw is whether a federal court of appeals may increase a criminal defendant's sentence sua sponte and in the absence of a cross-appeal by the Government. Similarly, Irizarry's case hinges on a district court's ability to impose a longer sentence than suggested by the Guidelines, without providing advance notice to the criminal defendant of the intent to make an upward departure.
The United State Sentencing Commission created the Federal Sentencing Guidelines to provide judges with "fair and consistent sentencing ranges to consult at sentencing." Under the Guidelines, crimes are assigned to one of 43 offense levels, based on the severity of the offense. The court may adjust the offense level upwards or downwards based on factors such as the identity of the victim, the defendant's role in the offense, and the defendant's criminal history. §§ To assist with their sentencing decisions, courts are given a presentence report prepared by a probation officer. § The presentence report identifies any factors relevant to the sentence, and "any basis for departing from the applicable sentencing range."
When promulgated, sentencing within the Guideline's range was mandatory, unless a court found that there were "aggravating or mitigating" circumstances which the guidelines did not adequately address. § However, in 2005, the Supreme Court held, in Booker v. United States, that while courts should still consider the Guidelines in their sentencing decisions, they are not required to sentence within the Guidelines range. The Court found that requiring a court to sentence within the Guidelines range violated the Sixth Amendment because it resulted in sentences based on facts found by the judge, not by the jury.
Under the prior precedent of Burns v. United States, before departing from the Guidelines sentencing range on a ground not identified in the presentence report or in a prehearing government submission, courts must notify the party of the grounds on which it is considering a departure. Congress later codified this holding as Federal Rule of Criminal Procedure 32(h) ("Rule 32(h)"), which provides that:
Before the court may depart from the applicable sentencing range on a ground not identified for departure either in the presentence report or in a party's prehearing submission, the court must give the parties reasonable notice that it is contemplating such a departure. The notice must specify any ground on which the court is contemplating a departure.
More recently, the Court has addressed what justifications courts must offer when sentencing inside or outside of the Guideline's range post-Booker. First, in June 2007, in United States v. Rita, the Court held that an appellate court can presume that a sentence within the Guidelines range is reasonable. Then, in December 2007, in Gall v. United States, the Court held that sentences outside of the Guidelines range could not be presumed unreasonable and that courts did not need to show "extraordinary" circumstances to justify sentences outside of the Guidelines range.
Irizarry poses two crucial issues. First, the Court must address if Rule 32(h) and the adversarial process require district courts to provide notice to defendants when they are contemplating an upward departure from the Guidelines sentencing range on a ground not previously identified. Second, the Court's holding in Burns avoided the due process issue by requiring notice. Here, if the Court decides that notice is not required, it must then address the question of whether that lack of notice is a deprivation of due process under the Fifth Amendment.
Irizarry is one of several cases the Supreme Court accepted this term as a result of its 2005 holding in Booker v. United States, which held that district courts are not required to sentence within range provided by the Federal Sentencing Guidelines. Following Booker, there has been much confusion and a lack of conformity amongst district courts with regard to sentencing. The Court is clearly trying to address these post- Booker lose ends once and for all. The Court's holding in this case will either further support the holding in Booker , and give district courts more discretion in their sentencing decisions. Alternatively, the Court could limit its holding in Booker and the discretion of sentencing courts, by requiring them to provide criminal defendants with advance notice of an intent to depart upward from the sentencing guidelines, when that departure is on grounds not previously identified in the presentence report or a pre-hearing government submission.
Cecelia Sander Cannon