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.