Criminal Litigation »

Irizarry and Rule 32(h): Be Ready for Anything

Since the U.S. Supreme Court’s decision in United States v. Booker in 2005, federal sentencing has changed. The federal courts continue to struggle with the proper application of the new “advisory” sentencing guidelines. Recently, the Supreme Court addressed an aspect of sentencing that had been the subject of a split among the circuits.

In United States v. Irizarry, the Court held that the requirement in Rule 32(h) of the Federal Rules of Criminal Procedure—that a sentencing court give notice that it is contemplating a departure from the recommended guidelines sentencing range on a ground not identified in either the presentence report (PSR) or in a party’s presentencing submission to the court.  The Court held that Rule 32(h) is not applicable when a sentencing court is considering imposing a variance from the recommended range.

The case turned on the distinction between a “variance” and a “departure.” The Court recognized that “departure” is a term of art under the guidelines that means a non-guidelines sentence imposed under the framework for such sentences that is set out in the guidelines themselves. Because the guidelines are no longer mandatory, a sentence outside the guidelines range does not raise the same due process issues that it used to raise.

Rule 32(h), entitled “Notice of Possible Departure from Sentencing Guidelines,” 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.

Rule 32(h) was promulgated in response to the 1991 Supreme Court decision in Burns v. United States. In Burns, the Court held that the Rule 32 provision that allowed parties to comment on the appropriate sentence would be rendered meaningless unless defendants were given notice of a contemplated departure. Note that in 1991, the guidelines were mandatory. In Irizarry, the Court confirmed that any expectation that a defendant will receive a sentence within the presumptively applicable guidelines range did not survive the Booker decision.

The sentencing variance in Irizarry was an increase from the top of the applicable guidelines range of 51 months to the statutory maximum of 60 months. The facts in Irizarry illustrate why the court increased the sentence.

The petitioner, Richard Irizarry, pleaded guilty to one count of making a threatening interstate communication, in violation of 18 U.S.C. § 875(c). He admitted the following: (1) he sent an email threatening to kill his ex-wife and her new husband; (2) he had sent “dozens” of similar emails in violation of a restraining order; (3) he intended the emails to “convey true threats to kill or injure multiple persons”; and (4) at all times, he acted knowingly and willfully.

The PSR, in addition to describing the threatening emails, reported that Irizarry had asked another inmate to kill his ex-wife’s new husband. The PSR advised against an adjustment for acceptance of responsibility and recommended a guidelines sentencing range of 41–51 months of imprisonment, based on enhancements for violating court protective orders, making multiple threats, and intending to carry out those threats.

The probation officer stated that the petitioner’s criminal history category might not adequately reflect his past criminal conduct or the likelihood that he would commit other crimes. The government did not object to the PSR and advised the court that it intended to call Irizarry’s ex-wife as a witness at the sentencing hearing. Irizarry objected to the PSR’s application of the enhancement based on his intention to carry out the threats and its rejection of an adjustment for acceptance of responsibility.

Four witnesses testified the evidentiary hearing.  The ex-wife described incidents of domestic violence, the basis for the restraining order, and the threats made against herself, her family, and her friends. She emphasized at some length her genuine concern that Irizarry fully intended to carry out his threats.

A special agent of the FBI described documents recovered from Irizarry’s vehicle when he was arrested that indicated he intended to track down his ex-wife and their children. Irizarry’s cellmate also testified that Irizarry was obsessed with the idea of getting rid of his ex-wife’s husband. Finally, Irizarry himself testified that he accepted responsibility for the emails, but that he did not really intend to carry out his threats. He also denied speaking to his cellmate about killing his ex-wife’s husband.

The sentencing judge found that Irizarry had: deliberately terrorized his ex-wife, he intended to carry out one or more of his threats, continued to intend to terrorize his ex-wife by whatever means he could, and did not accept responsibility for what he had done. The judge concluded:

I’ve considered all of the evidence presented today, I’ve considered everything that’s in the presentence report, and I’ve considered the statutory purpose of sentencing and the sentencing guideline range. I find the guideline range is not appropriate in this case. I find Mr. Irizarry’s conduct most disturbing. I am sincerely convinced that he 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 that he can be incapacitated is what is best for society, and therefore the guideline range, I think, is not high enough. The guideline range goes up to 51 months, which is only nine months shorter than the statutory maximum. But I think in Mr. Irizarry’s case the statutory maximum is what’s appropriate, and that’s what I’m going to sentence him.

The court imposed a sentence of 60 months of imprisonment to be followed by a three-year term of supervised release. Defense counsel immediately objected that they did not have notice of the court’s intent to upwardly depart. The court denied the objection and responded that the defense was on notice that the guidelines are only advisory and that the court could impose a sentence anywhere within the statutory range. Irizarry appealed to the Eleventh Circuit, which affirmed the sentence.

The Supreme Court granted certiorari to resolve a split among the circuits. The First, Third, Fifth, Seventh, and Eighth Circuits had all held that notice of a contemplated sentence outside of the guidelines range is not required. The Second, Fourth, Sixth, Ninth, and Tenth Circuits had held that such a contemplated sentence does require the court to give notice before imposing the sentence. [5] For example, the Fourth Circuit in United States v. Davenport cited the Burns case in holding that notice was necessary for an intent to depart or vary from the guidelines sentence. The Fourth Circuit held that the need for such notice did not change after the Booker decision. It adopted the Burns court’s analysis that because there is no limit on how many factors could possibly warrant a departure or a variance and because neither party to the case is in a position to guess what grounds a sentencing judge might use, notice by the sentencing court of its intent to depart or vary from the guidelines range is still necessary.

In resolving the split, the Supreme Court held that any expectations subject to due process protection at the time Burns was decided in 1991 have been eliminated by the Booker decision. Now that the guidelines are only advisory and not mandatory, neither the government nor the defense may place the same degree of reliance on the expectation of a guidelines sentence that gave rise to a special need for notice of a non-guidelines sentence in Burns. Furthermore, the Supreme Court in Gall v. United States held that a sentence outside of the guidelines carries no presumption of unreasonableness. Simply put, the due process concerns in a system of mandatory guidelines do not equally apply to advisory guidelines.

Although the courts continue to address sentencing issues resulting from the Booker decision, Irizarry makes clear that defendants can no longer count on no-surprise variances. Everything is now on the table, and a defendant must prepare to defend against any possible upward variance that a court could impose. Alternatively, a court’s ability to use more discretion in sentencing lets a defendant raise many more issues in seeking a lighter sentence than were previously permitted, without regard for whether the government was so warned.

Keywords: United States v. Irizarry, Rule 32(h), Supreme Court, Criminal Litigation

Elliot J. Blumenthal is with Buchanan Ingersoll & Rooney PC in New York, New York.

This article appears in the forthcoming Winter 2009 issue of Criminal Litigation.

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