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

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. The Court trusts the district court to make sure the parties will have an adequate opportunity to confront and debate the issues. The appropriate response to surprise is to consider a continuance when a party has a legitimate basis for claiming the surprise was prejudicial.

Opinion authored by Stevens, joined by Roberts, Scalia, Thomas and Alito. Breyer dissented, joined by Kennedy, Souter and Ginsburg.

The dissenters would read the reference to "departures" in the Rule to apply to variances, finding no meaningful distinction between the two. They also would find that the underlying purpose of Rule 32(h) requires applying it to variances.