Fives Take Sides On Rule 32(h) Circuit Split; Hold Notice Only Required for Sua Sponte Departures, not for Variances
In Burns v. United States, the Supreme Court held that a court may not upwardly depart from the applicable guideline range on a ground that has not been identified in the presentence report or in a presentence submission by the Government, unless the court first gives the parties notice that it is contemplating a sua sponte departure and specifically idenfies the grounds therefor. That rule was later codified, and is found in its current form in Federal Rule of Criminal Procedure 32(h). The Rule reads:
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.
But does Rule 32(h) survive Booker? A well-established circuit split has developed on this question, and Mejia-Huerta joins the ranks of the naysayers. Relying on the Fifth Circuit's distinction between departures (which count as Guidelines sentences) and variances (which don't), Mejia-Huerta holds that Rule 32(h) applies only the former.
According to the court "the plain language of Rule 32(h) limits its application to departures[,]" so it "applies to departures only and not to variances from the Guidelines." Slip op. at 19. The court buttresses this hyper-literal reading of Rule 32(h) with the unconvincing claim that the rationale of Burns falls by the wayside when it comes to variances:
In addition, as Booker has rendered the Guidelines purely advisory, the concerns that precipitated the Court’s decision in Burns are no longer viable. Sentencing post-Booker is a heavily discretionary exercise. Sentencing courts need only consider the Guidelines as informative and must consult the full host of factors set forth in § 3553(a) before rendering a reasonable non-Guidelines sentence. These factors are known(or knowable) by the parties prior to sentencing, thus putting the litigants on notice that a sentencing court has discretion to consider any of these factors. This knowledge eliminates the element of unfair surprise, the concern that defense counsel will waste time with a pre-sentencing filing, the possibility that defense counsel will unwittingly provide the sentencing court with a grounds for departure, and the worry of possibly undermining the adversarial process, that permeate Burns, thus negating its application to non-Guidelines sentences.
Slip op. at 19-20.
The obvious flaw in the court's reasoning is that all of the Burns concerns are magnified in a world of non-mandatory guidelines. That's because the universe of factors which can justify a non-Guideline sentence under § 3553(a) dwarfs the restrictive Guidelines departure scheme. (Just think of all the § 3553(a) factors that are either discouraged or outright prohibited as bases for departure.) Broader sentencing discretion militates in favor of more advance notice, not less.
Some miscellaneous observations/gripes:
- Part of the fault lies with Booker's so-called "remedial" holding, which apparently didn't anticipate all of the possible problems (like this one) created by excising a central feature of a complex body of sentencing law.
- Also frustrating is the fact that the actual patterns of reasonableness review are far more lopsided than Mejia-Huerta's claims about the breadth of post-Booker sentencing discretion would suggest.
- According to Mejia-Huerta, this brings the circuit split on this question to an even 4-4. I think the split is more complicated than the court makes it out to be, because I think at least one of the circuits in the "no" camp has held that Booker rendered the concept of departures meaningless. That would make for at least a 4-3-1 split on this issue. And there's no telling whether Rita and Claiborne will shed some light on this, or whether this will remain yet another conflict in need of resolution by the Supreme Court (or the Advisory Committee on the Rules).
Labels: Circuit Splits