Irizarry v. United States

In this case, the Supreme Court will consider what notice a defendant must receive when a court imposes a sentence outside of the range recommended by the Federal Sentencing Guidelines. The Eleventh Circuit Court of Appeals upheld that the district court's decision to increase Irizarry's sentence on grounds not contained in the presentence reports or in the party's prehearing submissions, even though the court had not provided notice to the parties of its intent to depart from the Guidelines.  Irizarry appealed this decision, arguing that Federal Rule of Criminal Procedure 32(h) ("Rule 32(h)") and the Court's holding in Burns v. United States require the court to give the parties notice before such a departure. .

The United States, which prosecuted Irizarry and opposed his position in Court of Appeals, is now also arguing that a sentencing court must give notice before departing from the Guidelines sentence on grounds not previously noticed.  Consequently, the Supreme Court appointed an attorney to argue in favor of the Eleventh Circuit's decision ("Eleventh Circuit's representative"). .

Departures and Variances: Is one of these things not like the other?

Much of parties' arguments hinge on whether there is a difference between a court sentencing outside of the Guidelines sentence range based on 18 U.S.C.  3553(a) versus doing so based on 18 U.S.C. § 3553(b).  Sentences imposed under Section 3553(a) are often referred to as "variances," and represent a court's reasoned judgment in its application of the Section 3553(a) factors to the facts of the case.  Section 3553(a) factors include such things as the nature of the crime, crime deterrence, protection of the public, and the need to provide restitution to the victim. § Sentences imposed under Section 3553(b) are generally referred to as "departures."  Section 3553(b) allows courts depart from Guidelines sentences when they find there are "aggravating or mitigating circumstance" not adequately considered by the Guidelines. §

The Eleventh Circuit's representative argues that "departure" and "variance" have distinct, precise legal meanings, and that courts are not required to provide notice of variances though they must for departures.  He contends that "departure" refers to rare, non-Guidelines sentences based on "distinct facts that make a case atypical."  In contrast, variances are sentences reflecting a court's reasoned judgment in its application of the sentencing factors contained in Section 3553(a). See Brief for Eleventh Circuit's Representative at 24. The Eleventh Circuit's representative concludes that since Rule 32(h) only references "departures," its notice requirements cannot be imposed on Section 3553(a) variances. 

The United States and Irizarry both argue that the plain language of Rule 32(h) indicates that court must provide notice when sentencing outside of the Guidelines range on grounds not previously identified, regardless of whether that sentence is characterized as a departure or variance. §They argue that "departure" ordinarily means any "divergence or deviation from a rule" and therefore encompasses what the Eleventh Circuit labeled a "variance."  The United States further notes that the Court has used the terms departure, variance, and deviation interchangeably when referring to sentences imposed under Section 3553(a).  Therefore, it argues that Section 3553(a) "variances" constitute "departures" governed by Rule 32(h)'s notice requirement. 

Burns and the Impact of Booker

Irizarry and the United States argue that under the Court's reasoning in Burns v. United States, Rule 32(h) requires a court to provide parties' with notice of its intent to depart from the Guidelines sentence range, regardless of the basis for that departure.  Irizarry argues that if a court fails to provide notice before a sua sponte departure from the Guidelines, it will undermine Rule 32(h)'s purpose of promoting "adversarial testing" of the basis for the departure, because the parties will not have an opportunity to comment on the sentence as provided in Federal Rule of Criminal Procedure 32(i)(1)(C). 

The Eleventh Circuit's representative argues that after Booker, parties should know that a district judge will consider the Section 3553(a) factors, effectively placing them on notice of the potential for variance.  He argues that there is no unfair surprise because the parties' knowledge of the important facts and arguments in their case alerts them to what section 3553(a) factors the judge might consider.  In those rare cases where there is unfair surprise, he argues that additional procedural protections, such as a continuance, supplemental briefing, or appellate review, will protect a criminal defendant's rights. 

Irizarry and the United States disagree that Booker places parties on notice of a potential variance. They argue the opposite - that it increases the need for specific notice because it "exponentially expanded" the potential reasons for departure. 

Due Process

Irizarry maintains that if the Court finds that Rule 32(h) does not require notice before a court imposes a non-Guidelines sentence on grounds not previously identified, it will raise and force the Court to deal with the question it avoided in Burns: whether due process requires such notice.  Irizarry implies that should the Court address this question, it must find that due process requires notice based upon the Court's prior holding in Townsend v. Burke.  The United States, though maintaining that due process does not require a court to provide notice in this situation, also encourages the Court to apply the principle of constitutional avoidance and construe Rule 32(h) to require notice.  The principle of constitutional avoidance provides that where an "otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress." 

The Eleventh Circuit's representative argues that concerns about due process do not merit extending Rule 32's notice requirement to Section 3553(a).  He argues that principle of constitutional avoidance does not apply because Rule 32(h) is unambiguous and does not allow multiple interpretations.  Further, he contends that due process concerns are not implicated because historically, the Court has imposed few restraints on discretionary sentencing practices.  The Eleventh Circuit's representative also argues that if the Court finds that due process requires notice before discretionary sentencing, it will raise federalism concerns by interfering with some state sentencing systems. 

What Should be Done with Irizarry's Sentence?

Irizarry argues that the district court's failure to provide him reasonable notice of its intent to depart from the Guidelines sentence was not harmless error, but prejudicial error, and therefore he should be granted a new sentencing hearing.  Irrizarry argues that the district court's conclusions regarding his future dangerousness were untested at the sentencing hearing, because the court did not hear available evidence which addressed the ability to treat and control his mental disorder that might undermine the court's conclusions.  He argues that the level of prejudice is not diminished by the relatively short increase in his prison sentence (nine months); any erroneous increase is prejudicial. 

The United States argues that Irizarry's sentence should be upheld because the district court's failure to provide notice was harmless error.  It argues that since the harmless-error analysis should only address the district court's violation of Rule 32 and not the due process issue, the Court should apply a lower standard of review, asking only whether it is "highly probable" that the failure to provide notice had a "substantial and injurious effect or influence."  The United State argues that Irizarry has not shown he would have done anything differently if he had notice the court was considering his future dangerousness under the Section 3553(a) factors as a basis for variance from the Guidelines.  It also contends that Irizarry presented at sentencing "essentially the same argument that he now contends he failed to present because of lack of notice," and that additional "cumulative" evidence would not have altered the court's conclusions. 

The Eleventh Circuit's representative maintains that a harmless error review of a district court's sentencing decisions is unworkable.  He argues that harmless error review of lack of notice is "inherently" speculative; first, because it is based on a parties' arguments about claims they "would have presented" given notice, and second, because it requires an appellate court to inquire into a district court's individual thought process had notice been given and the parties had responded.  The Eleventh Circuit's representative asserts that existing procedural mechanisms such as continuances, supplement briefing, and appellate review for unreasonableness, are sufficient to protect defendants from unfair surprise in sentencing decisions.