Amended Rules in Effect on December 1
The Federal Rules of Criminal Procedure and the Federal Rules of Appellate Procedure have been amended effective December 1, 2007. Here's a synopsis.
Federal Rules of Criminal Procedure:
Rules 11(b)(M), 32(d)(1) and (d)(2)(F), and Rule 35(b)(1) have been amended to reflect Booker. Rule 11(b)(M) has been changed to eliminate the requirement that the court advise the defendant of its obligation to apply the Guidelines and instead requires the court to advise the defendant the court must calculate the guideline range and consider it, possible departures and § 3553(a) sentencing factors. With respect to Rule 32 (d)(1), "advisory" is added to the reference to the Guidelines. Rule 32(d)(2)(F) will provide that the court may require the presentence report to include information relevant to § 3553(a). The advisory notes state that this means an individual judge could order this in a particular case or the court as a whole could order it for all cases. The Rule 35(b)(1) change eliminates the requirement that the reduced sentence, in light of the defendant's post-sentence cooperation, be in compliance with the Guidelines.
Significantly, Rule 32(h) does not explicitly require notice of a contemplated variance outside the guideline range, even though such a notice requirement was originally proposed. This is apparently because of the severe split in the circuits on the issue. The notes indicate the matter will be given further study. The 10th Circuit requires the giving of such notice pursuant to United States v. Atencio.
The amendments to Rule 45 make it clear that the three days for mailing are added after all the other time has run. So, for example, the three days after a 30-day time limit that ends on a Saturday will not start to run until the following Monday, giving the party until Thursday. Hurray.
Rule 49.1 is a new rule governing privacy protection in compliance with the E-Government Act. No complete social security numbers, birth dates, addresses. Exceptions include the address that identifies property to be forfeited, the record of an agency or state court proceeding, a pro se filing, warrants or other court filings on criminal matters made before the filing of criminal charges, and a charging document and affidavit in support of that document. The rule provides for filing under seal and filing documents with an identifier that refers to an identifier reference list that is kept under seal.
Federal Rule of Appellate Procedure
No big deal. Rule 25(a) provides that an appeal will be governed by the new rule 49.1 privacy provisions if the case was governed by that rule in the district court. The 10th Circuit has effectively already instituted the privacy provisions of 49.1.
Federal Rules of Criminal Procedure:
Rules 11(b)(M), 32(d)(1) and (d)(2)(F), and Rule 35(b)(1) have been amended to reflect Booker. Rule 11(b)(M) has been changed to eliminate the requirement that the court advise the defendant of its obligation to apply the Guidelines and instead requires the court to advise the defendant the court must calculate the guideline range and consider it, possible departures and § 3553(a) sentencing factors. With respect to Rule 32 (d)(1), "advisory" is added to the reference to the Guidelines. Rule 32(d)(2)(F) will provide that the court may require the presentence report to include information relevant to § 3553(a). The advisory notes state that this means an individual judge could order this in a particular case or the court as a whole could order it for all cases. The Rule 35(b)(1) change eliminates the requirement that the reduced sentence, in light of the defendant's post-sentence cooperation, be in compliance with the Guidelines.
Significantly, Rule 32(h) does not explicitly require notice of a contemplated variance outside the guideline range, even though such a notice requirement was originally proposed. This is apparently because of the severe split in the circuits on the issue. The notes indicate the matter will be given further study. The 10th Circuit requires the giving of such notice pursuant to United States v. Atencio.
The amendments to Rule 45 make it clear that the three days for mailing are added after all the other time has run. So, for example, the three days after a 30-day time limit that ends on a Saturday will not start to run until the following Monday, giving the party until Thursday. Hurray.
Rule 49.1 is a new rule governing privacy protection in compliance with the E-Government Act. No complete social security numbers, birth dates, addresses. Exceptions include the address that identifies property to be forfeited, the record of an agency or state court proceeding, a pro se filing, warrants or other court filings on criminal matters made before the filing of criminal charges, and a charging document and affidavit in support of that document. The rule provides for filing under seal and filing documents with an identifier that refers to an identifier reference list that is kept under seal.
Federal Rule of Appellate Procedure
No big deal. Rule 25(a) provides that an appeal will be governed by the new rule 49.1 privacy provisions if the case was governed by that rule in the district court. The 10th Circuit has effectively already instituted the privacy provisions of 49.1.
posted by Anonymous at 9:05 AM
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