Sentencing Case Analysis

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Rule 32(h) of the Federal Rules of Criminal Procedure provides: “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.”

In U.S. v. Walker, 447 F.3d 999, 1007 (7th Cir. 2006), the court held that, because the concept of “departures” is “obsolete,” post-Booker, Rule 32(h) no longer applies to sentencing.

Other circuits have disagreed. U.S. v. McBride, 434 F.3d 470, 471 (6th Cir. 2006); U.S. v. Chase, 451 F.3d 474, 482 (8th Cir. 2006).

The issue of whether a court should still use “departures” as such, is probably not cert-worthy. As long as the court is considering all relevant evidence and imposing a reasonable sentence, it really doesn’t matter what nomenclature the court uses.

However, the issue of whether a court must give notice to a defendant that it is considering imposing an above-guideline sentence is worthy of certiorari in the Supreme Court, and defense counsel should preserve the issue, notwithstanding the court’s opinion.

In the recent decision by the U.S. Supreme Court in Rita v. U.S., 127 S.Ct. 2456, 2468 (2007), the court wrote as follows:

	Related Article No notice required

“Circumstances may well make clear that the judge rests his decision upon the Commission’s own reasoning that the Guidelines sentence is a proper sentence (in terms of sec. 3353(a) and other congressional mandates) in the typical case, and that the judge has found that the case before him is typical. Unless a party contests the Guidelines sentence generally under sec. 3553(a) — that is argues that the Guidelines reflect an unsound judgment, or, for example, that they do not generally treat certain defendant characteristics in the proper way — or argues for departure, the judge normally need say no more. Cf. sec. 3553(c)(2) (2000 ed., Supp. IV). (Although, often at sentencing a judge will speak at length to a defendant, and this practice may indeed serve a salutary purpose.)(emphasis added).”

The issue before the court in Rita was not whether departures still have a place in the guidelines, but the court’s statement clearly suggests that the court believes they still do. If that is so, then Rule 32(h) still has a place in sentencing, and a court cannot impose an above-guideline sentence without prior notice to the defendant of the grounds for it.

As a result, defense attorneys have a new ground to object any above-guideline sentence unless they were given prior notice that it was being considered, and should continue to do so, notwithstanding the decision in the case at bar.

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David Ziemer can be reached by email.