United States v. Hargrove, No. 06-4276-cr (2d Cir. August 16, 2007) (Feinberg, Calabresi, Wesley, CJJ).
Terrence Altman had pled guilty to a drug misdemeanor (yes, there are drug misdemeanors), but violated his supervised release by using cocaine. While awaiting sentencing on that violation, he tested positive again. He admitted to that violation as well and, in all, faced a three to nine month revocation range. However, Judge McMahon sentenced him to one year in prison, without giving notice of her intention to upwardly depart.
On appeal, he argued that he should have been entitled to notice of the court’s intention to impose a sentence higher than recommended by the Chapter 7 policy statements. The Circuit affirmed.
The court began by noting that, ten years ago, it had held that there was no right to such notice, because revocation sentences are governed by Chapter 7 policy statements, and these non-binding policy statements are not guidelines.
The court concluded that the same holds true post-Booker, even though a defendant remains entitled to notice of a court’s intention to impose an above-guideline sentence now that the guidelines themselves are advisory. The court saw little need to harmonize the two types of cases, noting that, even post-Booker, it has continued to distinguish between “policy statements” and “sentencing guidelines” and, in this situation the “distinction continues to be warranted.”
Comment: What an odd little case. It is now the rule in this Circuit that one kind of advisory sentencing regime, the initial sentence, has an important procedural protection that another kind of advisory regime, the revocation sentence, lacks.