Stanford student Erica Ross wrote the following preview of the second case to be argued on Tuesday, Irizarry v. US.

In Irizarry v. United States, No. 06-7517, the Court will consider whether a district court must provide the parties with notice that it is contemplating a departure from the applicable Sentencing Guidelines range on a ground not identified for departure in the presentence report or in a party's prehearing submission. Petitioner Richard Irizarry argues that the district court violated Federal Rule of Criminal Procedure 32 when it failed to provide such notice. The United States agrees that Rule 32 requires a district court to provide notice, but argues that the failure to do so in this case was harmless error. A court-appointed amicus argues that Rule 32 does not require notice in these circumstances.


In 2003, Richard Irizarry was indicted on one count of making a threatening interstate communication against his ex-wife in violation of 18 U.S.C. § 875(c). In 2004, a superseding indictment charged him with fifteen counts of the same offense. Irizarry filed a factual resume that admitted that he had sent an email charged in Count Thirteen to his ex-wife, Leah Smith, threatening to kill her and her new husband; that he had "sent dozens of other similar emails" since his divorce from Smith in 2001 in violation of a restraining order; that the emails were intended by him "to convey true threats to kill or injure multiple persons;" and that he "at all times relevant during the commission of this crimeacted knowingly and willfully." On a motion by the United States, the district court dismissed the remaining counts.

The presentence investigation report recommended two two-level sentence enhancements because Irizarry's offense violated a court protection order and involved more than two threats. It also recommended one six-level enhancement because the offense included "conduct evidencing an intent to carry out such threat." The district court applied all three enhancements, resulting in a Sentencing Guidelines range of 41 to 50 months. The district court then sentenced Irizarry to the maximum 60 months' imprisonment, three years' supervised release, and a $100 special assessment. In determining the sentence, the district court stated:

“I find the guideline range is not appropriate in this case. . . . I am sincerely convinced that [Irizarry] will continue, as his ex-wife testified, in this conduct regardless of what this Court does and regardless of what kind of supervision he's under. And based upon that, I find that the maximum time he can be incapacitated is what is best for society, and therefore the guideline range, I think, is not high enough. . . . I think in Irizarry's case the statutory maximum is what's appropriate, and that's what I'm going to sentence him.”

Irizarry objected that the court had not given him advance notice of its intent to depart upward from the Guidelines as required by Rule 32(h) and the Supreme Court's 1991 decision in Burns v. United States. The district court overruled the objection, stating that Irizarry "had notice that the Guidelines were only advisory" and that he could be sentenced anywhere within the statutory range. The district court did not say that it was engaging in an upward departure under the Guidelines.

Irizarry appealed to the Eleventh Circuit, arguing that the district court violated Rule 32(h) and Burns by failing to give advance notice of the grounds on which the court was considering an upward departure. The Eleventh Circuit affirmed, concluding that the district court's above-Guidelines sentence was a variance to which the Rule 32(h) notice requirement did not apply. The Eleventh Circuit reasoned that the district court correctly calculated the advisory guidelines range, and then used its discretion to consider the adequacy of that range in light of the 18 U.S.C. § 3553(a) factors and the evidence presented at the presentence hearing, which suggested that Irizarry posed a threat to the public. The Eleventh Circuit reasoned that after Booker, parties are "inherently on notice" that the Sentencing Guidelines range is only advisory and that the district court must consider the Section 3553(a) factors when selecting a sentence within the statutory range.

Petition for Certiorari

Irizarry filed a petition for certiorari, which was granted on January 4, 2008.

Irizarry argued that the Court should grant the writ because the decisions of the courts of appeals were split with regard to whether the Rule 32(h) notice requirement survived United States v. Booker, which rendered the Sentencing Guidelines advisory. Irizarry noted that the Eleventh Circuit's rule was in line with that of the Third, Seventh, and Eighth Circuits, while the Second, Fourth, and Ninth Circuits found Rule 32(h) applicable in post-Booker cases, regardless of whether the above-guideline sentence was characterized as a variance or a departure. Furthermore, Irizarry noted that the First Circuit acknowledged the circuit split.

Irizarry argued that certiorari was warranted to avoid unwarranted sentencing disparities. He further argued that the determination whether notice is required should not turn on whether the sentence is characterized as a "variance" or a "departure," because in either situation, the parties are not easily able to guess the grounds on which the court might choose to vary.

In its brief in opposition, the United States acknowledged the circuit split but stated that, "in the United States' view, Rule 32's notice requirement applies" to a decision by a sentencing court to exercise its post-Booker discretion to impose a non-Guidelines sentence based on § 3553(a) factors. Despite this agreement on the legal rule, the United States urged the Court not to review the question at this time for three reasons. First, the failure to provide Irizarry with notice was harmless error, because Irizarry's past conduct was detailed in the presentence report and he "has never pointed to any additional evidence he would have introduced or argument he would have made if he had known before the sentencing hearing that the district court intended to impose a non-Guidelines sentence on that basis." Second, the Judicial Conference was considering the possibility of amending Rule 32 to clarify the notice issue, which would make the Court's intervention unnecessary. Finally, the United States urged the Court not to address the notice issue until after its disposition of Claiborne v. United States and Rita v. United States because the decisions in those cases, which considered the role of the Sentencing Guidelines after Booker, might inform the correct resolution of the issue here.

Merits Briefing

Because the United States conceded that the district court erred in not providing Irizarry with reasonable notice, a court-appointed amicus submitted a brief urging affirmance of the judgment below.

  • Does Rule 32 require notice after Booker?

Rule 32 was amended in 2002 to include paragraph (h), which codified the Court's holding in Burns. Specifically, that section states 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.

Irizarry argues that Rule 32(h) requires notice for all deviations from the Guidelines range, whether based on the Guidelines "departures" or § 3553(a) "variances." While noting that the term "departure" often refers to non-guidelines sentences based on Chapters 4 and 5 of the Guidelines, Irizarry argues that when Rule 32 was written this term included all non-Guidelines sentences, and that it should continue to apply broadly. The United States agrees, noting that the Guidelines' definition of "departure" as the "imposition of a sentence outside the applicable guideline range or of a sentence that is otherwise different from the guidelines sentence" supports such a reading. In addition, the United States notes that several courts, including the Supreme Court, have used the terms "departure" and "variance" interchangeably.

Amicus argues that this broader reading of Rule 32(h) cannot be squared with that rule's text, because the text speaks only about departures. According to amicus, departures and variances are "fundamentally different sentencing devices," in that departures depend on facts that make a particular case atypical and therefore not adequately addressed by the Sentencing Guidelines, while variances depend on "reasoned judgments based on the considerations set forth in Section 3553(a) by Congress."

As a matter of policy, Irizarry and the United States both argue that failing to require notice would be "inconsistent with Rule 32's purpose of promoting focused, adversarial resolution of the legal and factual issues relevant to fixing Guidelines sentences." Burns, 501 U.S. at 137. Lack of notice would lead parties to either try to address every potential for departure in a scattershot way, or not to address any. Irizarry and the United States also argue that the greater discretion given sentencing judges after Booker makes adversarial testing of sentencing facts even more crucial. Moreover, Irizarry contends that reading Rule 32(h) to require notice of a Guidelines departure, but not an above-Guidelines sentence based on Section 3553(a), would "create an artificial distinction" because the same factual grounds can justify either type of increase in sentence. Irizarry believes that this distinction would be unfair, and would create administrability problems because courts sometimes rely on both types of factors, or specify neither type. The United States agrees, noting that as a practical matter, a sentencing court can use a § 3553(a) variance to impose the same sentence that it would have imposed as a Guidelines departure, so that treating the two differently would allow courts to bypass the notice requirement entirely. Finally, the United States adds that construing rule 32 to require notice of variances would enable courts to avoid considering whether the Due Process Clause requires notice, an issue the Court was careful to avoid in Burns.

Amicus disputes these policy and administrability concerns. Amicus argues that departures are better suited to notice because they are based on atypical facts, and because they apply in a small number of cases. By contrast, Section 3553(a) factors that may justify a variance apply in every case, so parties "can and should come to a sentencing hearing fully aware" that those factors will be considered. There is no artificial distinction; instead, treating the two types of factors differently makes sense in light of the Court's jurisprudence.

Irizarry notes that, as a textual matter, Fed. R. Crim. P. 32(i)(1)(C) gives parties the right "to comment on the probation officer's determinations and other matters relating to an appropriate sentence." He argues that, as the Court reasoned in Burns, it would make no sense to give parties the right to comment on the grounds for departure without giving them notice of the potential departure. The United States agrees.

Amicus responds that, despite the ruling in Burns, Rule 32(i)(1)(C) does not explicitly require notice. According to amicus, the Burns rule should not be extended to post-Booker, Section 3553(a) variances because Burns was decided in the context of mandatory Guidelines with very few departures. By contrast, after Booker, parties know that a Guidelines sentence cannot be assumed, and expect the court to consider all the 3553(a) factors.

Irizarry responds that parties had the same generalized notice of Chapter 4 and 5 factors before Booker, but were still entitled to notice in their particular cases. Moreover, the United States and Irizarry argue that notice is even more important to the parties with regard to § 3553(a) variances, because courts have greater freedom to depart under that section than under the Guidelines. Amicus responds that criminal defendants receive adequate notice under the existing presentence process, and that narrowly tailored remedies, such as an appellate court vacating a sentence as unreasonable, can take care of extreme cases.

Amicus further argues that as a practical matter, requiring notice for Section 3553(a) variances would diminish the flexibility Booker was meant to ensure. First, a notice requirement would discourage courts from using such variances, pushing them toward the Guidelines sentences that the Supreme Court has noted are not presumptively reasonable. In addition, a notice requirement would leave unclear "what amount of notice suffices" and would force a judge to enter a sentencing hearing with a "closed mind," diminishing the judge's ability to consider the evidence presented at that hearing. Finally, amicus argues that the notice requirement would undermine appellate review, as trial judges would become fearful of adequately explaining their sentencing decisions, which could then be challenged for lack of adequate notice.

The United States responds that requiring notice would not be burdensome, because the court departs sua sponte under § 3553(a) in relatively few cases. Moreover, judges often have a developed view of the appropriate sentence before the sentencing hearing, giving them adequate time to provide notice. The United States also notes that what constitutes reasonable notice is context-specific, and that notice at the sentencing hearing itself may often be sufficient.

Amicus also argues that reading a notice requirement into Rule 32 would circumvent the rulemaking process, insofar as Congress considered "“ but rejected "“ a similar proposal. Rulemaking rather than litigation should be used to modify the federal sentencing rules, as rulemaking allows for input from judges and the public, and allows the problem to be considered in its broader context.

  • If Notice Was Required, Did Failure to Provide it Constitute Harmless Error?

The United States contends that failure to provide notice is subject to harmless error review, and that such failure was in fact harmless in this case. Irizarry urges the Court to remand rather than decide the harmless-error issue. Amicus does not believe that the failure to provide notice should be subject to harmless-error review.

Irizarry argues that the District Court's failure to provide reasonable notice requires a new sentencing hearing. Because the Court of Appeals did not decide whether the failure to provide notice was harmless error, and because making such a determination would require the Court to decide whether the Due Process Clause requires notice, Irizarry urges the Supreme Court to remand. If the Court does in fact reach the question of harmlessness, Irizarry argues that a new sentencing hearing is warranted because the lack of notice was prejudicial, insofar as he could have introduced evidence disputing his future dangerousness and/or suggesting alternative punishment if he were given notice.

The United States urges the Court to address the harmless-error issue rather than remand. Because the error here was a violation of the Federal Rules of Criminal Procedure, the Court should apply the standard for non-constitutional harmless-error from Kotteakos v. United States (1946), which requires reversal only if it is "highly probable" that the error had a "substantial and injurious effect or influence" in determining the outcome of the proceeding. The United States notes that Irizarry has never raised a separate due process claim, which would be required before the more demanding harmless error standard of Chapman v. California (1967), would apply.

Nevertheless, the United States argues that the error was harmless under either the Kotteakos or Chapman standard. Irizarry had notice that the likelihood that he would commit additional crimes was a central issue at sentencing and could lead to an above-Guidelines sentence. Moreover, while Irizarry now claims that he would have presented additional testimony on his delusional disorder and potential for treatment, that testimony would not have changed his sentence. Irizarry made a similar claim "“ which the district court rejected "“ at sentencing, and the evidence at sentencing showed that he had repeatedly refused medication and was "not motivated to engage in any treatment."

Amicus argues that harmless error review is simply inappropriate in this context. Any appellate inquiry about the effects of a failure to provide notice would be "more speculative" than the typical harmlessness review because the appellate court would have to imagine what arguments the parties would have presented if given notice, since such arguments are not part of the record. Moreover, in this context, the appellate court would be faced with the difficult task of speculating about a multifaceted sentencing judgment.

Amicus also refutes Irizarry's argument that a new hearing is required to avoid deciding the constitutional due process issue. First, amicus notes that the canon of constitutional doubt applies only to ambiguous provisions, and that Rule 32 is unambiguous. Next, amicus contends that procedural due process does not require notice because there is no historical practice, and the Mathews v. Eldridge balancing inquiry is inappropriate in criminal cases. Moreover, amicus argues that, even if the Mathews test applied, Irizarry's rule would fail because his interest in notice is "moderate at best," while the United States' interest is weighty. Amicus argues that any sentencing error or "risk of erroneous deprivation" could be cured by existing procedures. Finally, requiring notice as a matter of federal constitutional law would impose an additional federal requirement on the states, which have a primarily role in the administration of criminal justice.
In his reply brief, Irizarry argues that the government cannot show that the error was harmless. First, while the PSR focused on Irizarry's criminal history, the district court did not impose a non-Guideline sentence on that basis. Instead, the district court sentenced Irizarry based on its judgment that future treatment would be futile, even though the parties did not introduce expert medical testimony about Irizarry's treatment options. In addition, Irizarry refutes the Government's contention that a lack of reasonable notice is harmless if the "ground" for the district court's sentence appears generally in the PSR or is announced at sentencing. According to Irizarry, such a rule would "render virtually all notice errors harmless and undermine the effectiveness" of the Rule 32 notice requirement.

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