Notice of Variance for Non-Guideline Sentence Required

U.S. v. Atencio, --- F.3d ----, 2007 WL 102977 (10th Cir. Jan. 17, 2007)

A long-awaited and welcome reversal and remand on an upward variant sentence in the early post-Booker days. (Weird procedure note: Murphy wanted the case to be initially reviewed en banc because he was annoyed with the panel opinion, so he wrote an opinion that preceded the opinion proper, and was joined by Briscoe and Kelly. Tacha, Kelly, Briscoe, Murphy, Tymkovich and Gorsuch would have granted en banc.). The panel was Henry, Lucero, & O’Connell and Lucero wrote the opinion.

1. The Tenth joins 4 circuits and holds that Rule 32(h) and the reasoning underlying Burns applies to variant sentences outside the guidelines, and a district court must give the parties notice of its intent to set a sentence outside of the guidelines (4 circuits hold that Rule 32(h) does not require notice). Counsel’s failure to object to the lack of notice however, did not forfeit the objection on appeal under Bartsma.

BUT BIG PRACTICE WARNING: the en banc panel has overruled Bartsma, but did not apply it retroactively to this case. What this means is that a defendant MUST object to the lack of notice at sentencing to preserve his claim of Rule 32(h) error for appellate review. “Upon objecting to the lack of notice, the defendant should then move for a continuance.”(I am not certain why the opinion is not en banc but is en banc for this overruling of Bartsma).The overruling is applied prospectively.


2. The district court employed inadequate procedure in setting an upward variant sentence under Sec. 3553 by failing to explain its reasons for relying on certain factors. The 10th indicates that pre-Booker analysis may still have a place in addressing the reasons underlying imposing a variant sentence. The district court, for example, based the variant sentence in part upon a prior offense that had already been addressed in D’s criminal history. “Because the Guidelines carefully account for prior crimes through criminal history categories, a district court varying or departing on the basis of a conviction already considered in the criminal history score must at least explain why that score fails to reflect the seriousness of the prior crime. Allowing a district court to vary or depart in the absence of such explanation would amount to unjustified double-counting of the prior crime, and also hinder this court's ability to review the reasonableness of the variance or departure.” The 10th went on, hewing pretty closely to the D’s argument, to point out that the district court failed to explain why it needed a variant sentence and why the guidelines did not in fact adequately take into account the very features the court was using to base its higher variant sentence. “When a factor is already included in the calculation of the guidelines sentencing range, a judge who wishes to rely on that same factor to impose a sentence above or below the range must articulate specifically the reasons that this particular defendant's situation is different from the ordinary situation covered by the guidelines calculation.”