Stanford student Erica Ross wrote the following entry on one of Thursday’s decisions. Read more about the case here.

In a decision noted for its interesting line-up of justices, the Court affirmed the Eleventh Circuit's holding that Rule 32(h) did not apply in Mr. Irizarry's case because the above-guidelines sentence imposed was a variance, not a guidelines departure. Justice Stevens wrote for the majority, joined by the Chief Justice and Justicea Scalia, Thomas, and Alito. Justice Thomas filed a concurrence, while Justice Breyer filed a dissent that was joined by Justices Kennedy, Souter, and Ginsburg.

Writing for the five-justice majority, Justice Stevens first noted that the Due Process concerns recognized in Burns do not apply in a world of advisory Guidelines, because neither the Government nor the defendant may place the same reliance on the expected Guidelines range as it did when the Guidelines were mandatory. Justice Stevens then noted that, contrary to the dissent's analysis, the term "departure" is a term of art under the Guidelines, and therefore Rule 32 does not on its face apply to § 3553 variances.

The majority next emphasized the practical effects that extending the notice requirement would entail. First, the notice requirement would apply to far more cases that it did under Burns, because a district court may apply a variance for any number of reasons under the sentencing factors in § 3553(a). Second, extending the notice requirement to variances would often cause unnecessary delays in sentencing, as a judge who decides during a sentencing hearing that a variance is appropriate might be forced to give notice and continue the hearing even though the parties' presentations would not change.

Recognizing the importance of providing information to the parties and giving them an adequate opportunity to debate the issues, the Court noted that district judges could be trusted to grant a continuance when appropriate "“ i.e., when the basis for a sentence comes as a surprise to a party, and that surprise is prejudicial. The majority suggested that this would be a rare occasion, quoting Judge Boudin's statement that factors important in sentencing, such as culpability, seriousness of the crime, and criminal history "should not generally come as a surprise to trial lawyers who have prepared for sentencing." Finally, the Court noted that Rule 32's other procedural protections help to insure that all relevant matters pertaining to sentencing have been considered before the judge makes a final sentencing determination.

In his concurring opinion, Justice Thomas reiterated "“ as he did in his Kimbrough dissent earlier this term "“ that there is no principled way to apply the Booker remedy, and thus that the Guidelines should be mandatory. While mandatory Guidelines would make the sentence imposed in this case statutory error (because sentences outside the Guidelines would only be permissible when certain aggravating or mitigating circumstances are present), Justice Thomas noted that this issue was not before the Court. On the "narrow question" whether Rule 32(h) requires notice for a variance, Justice Thomas agreed with the Court that neither the rule's text nor Burns requires notice, as both apply only to "departures."

Calling the majority's ruling "a legal distinction without much of a difference," Justice Breyer's dissent argued that, conceptually and colloquially, a "variance" could fit within the statutory definition of "departure." Acknowledging that only departures existed when the Rule was written, Justice Breyer advocated focusing on the purposes behind Rule 32(h), which he argued still apply in a post-Booker world. The dissent argued that due process concerns were not the primary reason for the Court's ruling in Burns; instead, it focused on the need to make meaningful the parties' ability to comment, and the need for focused and adversarial development of the issues involved in sentencing. The dissent also refuted the majority's main practical arguments, stating that courts have always been free to depart in a wide variety of ways, and that an expanded number of grounds for non-Guidelines sentences only increases the need for notice. Moreover, the dissent argued, notice will not usually mean delay, because parties may already be aware of the grounds for variance or may be able to address them without any significant continuance. Finally, noting that both the Government and the defendant in this case argued in favor of requiring notice, the dissent argued that any delay would be justified to assure procedural fairness.

Posted in Irizarry v. U.S., Everything Else