Thursday, April 20th, 2006

DOJ Reverses Course: Government Agrees that Notice Is Required before Court Can Exceed Guidelines Range (whether via Departure or via 3553(a) Factors)

We recently received a copy of a letter written by the Criminal Division of the Department of Justice, addressed to the Clerk of the First Circuit, in which the Government adopts the position — directly contrary to its earlier view — that Fed. R. Crim. P. 32 requires prior notice to the parties if a court intends to exceed the Guidelines range at sentencing, whether via a traditional departure or via a consideration of the § 3553(a) factors pursuant to Booker. As the Government writes, “the sentencing court does have an obligation to provide prior notice before deviating from the Guidelines range on a ground that was not identified in the presentence report or by the parties. . . . [A] district court should provide notice to the parties when it is contemplating a sua sponte deviation (whether upward or downward) from the advisory Guidelines range.” Letter at 1-2.

This was big news to us, since the Government has argued on several pending appeals that notice was required only when a court departs from the advisory range, and not when a court imposes a “non-Guidelines” sentence above (or below) the range. It is also somewhat unusual given that the only Circuit to have resolved this question in a published opinion — the Eighth — concluded that notice is not required if the court imposes a non-Guidelines sentence outside the advisory range. United States v. Egenberger, 424 F.3d 803, 805 (8th Cir. 2005).

In our view, the Government’s new position not only accords with the law (especially in light of the Supreme Court’s reading of the earlier version of Rule 32(h) in Burns v. United States, 501 U.S. 129 (1991)), but also makes perfect sense from its “pro-Guidelines” perspective. If one wants the Guidelines to remain foremost (i.e., “presumptive”) in the sentencing court’s eye, as the Government obviously does, what better way to achieve that goal than to require the court to give advance notice of its intent to do so (as well as its reasons for doing so)? Such a requirement likely will have the effect of deterring some busy district courts from imposing non-Guidelines sentences. And since statistics indicate that more non-Guidelines sentences are of the below-the-range variety (rather than the above-the-range type), a reading of Rule 32 to require prior notice any time such sentences are contemplated will benefit the Government more than defendants in the long run.

NB: Please email me if you want a PDF version of the Government’s letter.

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8 Responses to DOJ Reverses Course: Government Agrees that Notice Is Required before Court Can Exceed Guidelines Range (whether via Departure or via 3553(a) Factors)

  1. Anonymous Friday, April 21st, 2006 at 2:24 pm #

    Please e-mail me a copy of the Governments letter


  2. David B. Chontos Friday, April 21st, 2006 at 2:57 pm #

    Please email me a copy of the DOJ letter. I have this issue presently before the 3rd Circuit and oral arugment maybe coming up in the 3rd week of May. I would like to add it to my Rule 28(j) letter.

  3. David B. Chontos Friday, April 21st, 2006 at 3:12 pm #

    It would have been helpful if I left my address…sorry…

  4. Anonymous Friday, April 21st, 2006 at 3:22 pm #

    This was a long time coming — is it any big surprise that a Supreme Court ruling can’t read a federal rule of criminal procedure out of the books? I can’t believe the U.S. Attorney had EVER taken the opposite position.

  5. Anonymous Friday, April 21st, 2006 at 4:20 pm #

    The Tenth Circuit has issued two cases, U.S. v. Dozier, 05-6259 (10th Cir. Apr 5, 2006), and U.S. v. Calzada-Maravillas, 05-5029 (10th Cir. Apr 17, 2006), in which they hold that the notice requirements of Rule 32(h) survives Booker. “Therefore, we hold today that Rule 32(h) survives Booker and requires a court to notify both parties of any intention to depart from the advisory sentencing guidelines as well as the basis for such a departure when the ground is not identified in the presentence report or in a party’s prehearing submission.” In Calzada-Maravillas, the court held that the error was not harmless

  6. Yuanchung Lee Friday, April 21st, 2006 at 5:07 pm #

    The two 10th Circuit case referred to in the previous post concern DEPARTURES rather than non-Guidelines sentences under Booker. That’s a much easier issue — Rule 32(h) explicitly says that notice is required before the court can “depart,” and the departure mechanism, like the rest of the Guidelines, continue to exist after Booker (at least in every Circuit other than the 7th). The importance of the Government’s recent letter is its concession that notice is required whenever the court sentences outside the advisory Guidelines range, whether via the traditional departure mechanism or via a consideration of the § 3553(a) factors.

  7. Anonymous Friday, April 21st, 2006 at 7:52 pm #

    Actually the 10th Cir. Dozier opinion is fairly vague–the word “depart” is used to describe the higher sentence but it is not clear what guideline departure provision, if any, was employed by the district court. The court also said Rule 32 affords the right to be notified of “any intention by the district court to enhance a sentence..” The word “enhance” is very broad. Also, the Committee on Rules of Practice and Procedure of the Judicial Conference has drafted a proposed amendment to R. 32(h) which would make it specifically apply to variances–good to refer to that in your arguments.

  8. Yuanchung Lee Friday, April 21st, 2006 at 8:49 pm #

    That’s a great find — thanks for pointing out the proposed amendment to Rule 32.

    FYI: The proposed rule can be found at page 150-156 of

    Also, our colleagues at the 4th Circuit Blog just informed us of a new 4th Circuit decision holding that advance notice must be provided of any variance from the Guidelines. By our count, the 4th Circuit is the first Circuit to so conclude (definitively). Who wouldathunk?!