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Notice Requirement of FRCP 32(h) Doesn't Extend to Variances

By Shari Allison

Irizzary v. US, No. 06-7517 (S.Ct. 6/12/08): Federal Rule of Criminal Procedure 32(h), requiring the sentencing court to give notice of a potential upward departure on a ground not specified in a PSR or pre-hearing submissions, does not apply to variances from a recommended guideline range. Any constitutionally protected expectation that a defendant will be sentenced in the presumptively applicable guideline range did not survive Booker. The due process concerns that existed under a mandatory guidelines system no longer apply. Furthermore, the rule refers only to departure, and "departures" and "variances" are not the same: a departure is a term of art that refers only to non-Guidelines sentences imposed pursuant to the guidelines. A special notice requirement could create unnecessary delay...continue to full post

Full post as published by Tenth Circuit Blog on June 12, 2008 (boomark / email).