§761 Notice/Disclosure of Information
5th Circuit says no notice is required for supervised release revocation departure. (761)(800) In revoking defendant’s supervised release, the district court departed upward under § 7B1.4 because it had departed downward under § 5K1.1 at defendant’s initial sentencing. The Fifth Circuit held that no notice was required for an upward departure under § 7B1.4. In any event, defendant had notice of the possible departure from the government’s sentencing memorandum. U.S. v. Hammond, __ F.4th __ (5th Cir. Feb. 4, 2022) No. 21-30435.
10th Circuit finds defendant waived objection to PSR that was not reasserted at sentencing. (761)(850) Defendant, a pharmacist, was convicted of Medicare fraud and distributing drugs. In his objections to the presentence report, he disputed the PSR’s calculation of the amount of drugs, but the district court never ruled on this issue. Fed. R. Crim. P. 32(i)(3)(B) requires the district court to resolve objections to the PSR or state that the matter will not be considered in sentencing. However, defendant did not raise Rule 32(i)(3)(B) in the district court and did not argue plain error on appeal. Accordingly, the Tenth Circuit found that defendant had waived the argument. U.S. v. Otuonye, __ F.3d __ (10th Cir. May 4, 2021) No. 19-3250.
5th Circuit okays denial of evidentiary hearing where defendant failed to make a proffer. (761) The district court refused to hold an evidentiary hearing at sentencing at defendant’s request over the amount of loss caused by defendant’s fraud offenses. The Fifth Circuit upheld the district court’s action, finding that defendant had ample opportunity to present evidence by affidavits and statements of counsel and had the opportunity to proffer the substance of what his expert would have said at the conclusion of the sentencing hearing. U.S. v. Barnes, __ F.3d __ (5th Cir. Oct. 28, 2020) No. 18-31074.
5th Circuit affirms denial of evidentiary hearing where counsel used opportunity to object to PSR. (761) Defendant, who was convicted of Medicare fraud, sought an evidentiary hearing at sentencing to submit evidence and testimony that his attorneys did not submit at trial. The Fifth Circuit held that the district court had not erred in denying defendant an evidentiary hearing because his counsel used the opportunity to submit objections to the presentence report. U.S. v. Ramirez, __ F.3d __ (5th Cir. Oct. 27, 2020) No. 19-20098.
5th Circuit okays denial of evidentiary hearing where defendant failed to make a proffer. (761) The district court refused to hold an evidentiary hearing at sentencing at defendant’s request over the amount of loss caused by defendant’s fraud offenses. The Fifth Circuit upheld the district court’s action, finding that defendant had ample opportunity to present evidence by affidavits and statements of counsel and had the opportunity to proffer the substance of what his expert would have said at the conclusion of the sentencing hearing. U.S. v. Barnes, __ F.3d __ (5th Cir. Oct. 28, 2020) No. 18-31074.
1st Circuit finds no error despite inadequate notice of victim statements. (761) At defendant’s sentencing for sex trafficking, the government presented statements from some of defendant’s victims, including victims that were not the subject of counts to which he pleaded guilty. Defendant argued that he received inadequate notice of these victim statements. The First Circuit found no error because the district court did not rely on the victim statements in sentencing defendant. The court also noted that defendant never moved for a continuance to consider the statements. U.S. v. Davis, __ F.3d __ (1st Cir. May 6, 2019) No. 17-2100.
6th Circuit reverses upward variance based on news article that was not disclosed before sentencing. (742) (761) Defendant pled guilty to drug charges, resulting in a recommended guideline sentence of 60 months. The district court sentenced him to 120 months, based in large part on a brief local news article that described a recent surge in drug overdose deaths, mostly due to powerful opioids like fentanyl. Neither this article, nor the underlying Ohio state report on which it was based, was provided to the parties before the start of the sentencing hearing. Nor was defendant notified before the hearing that the district court planned to consider the article or the issues it addressed. Because this procedure denied defendant a meaningful opportunity to comment on information that led to a substantial increase in his sentence, the Sixth Circuit held that the resulting sentence was procedurally unreasonable. U.S. v. Fleming, __ F.3d __ (6th Cir. June 29, 2018) No. 17-3954.
6th Circuit holds defendant had sufficient notice of restitution issues before sentencing. (610)(761) In ordering defendant to pay $10,388.57 restitution to the EPA, the district court relied on a government spreadsheet, known as a SCORPIUS report, which itemized the costs the EPA paid to contractors for the bulk of the asbestos cleanup. The Sixth Circuit rejected defendant’s argument that the government’s disclosure of the SCORPIUS report about three weeks before sentencing was too late to provide him with adequate notice and opportunity to respond. Defendant knew that restitution would be a contested issue from the outset of the case. He filed a reply five days before the hearing, addressing at some length the invoice submitted by the government. At the hearing, defendant and his co-defendant had the opportunity to present their own witnesses and to cross-examine the government witnesses. Defendant never asked the government for additional details or to provide other documents or to interview witnesses, and never sought intervention by the court. U.S. v. Sawyer, __ F.3d __ (6th Cir. June 3, 2016) No. 15-5181.
5th Circuit upholds money laundering calculation despite lack of notice in PSR. (360)(761) Guideline §2S1.1(a), outlines two ways to calculate the base offense level for money laundering: (1) based on the offense level for the underlying offense; or (2) based on the value of the laundered funds. Defendant’s PSR used the second method, but at sentencing, the prosecutor argued for the first method, and the court agreed. Defendant claimed that the switch deprived him of the right to notice under Federal Rule of Criminal Procedure 32(i)(1)(C) and guideline §6A1.3. The Fifth Circuit disagreed. Defendant knew all of the underlying facts that led the court to apply the first method of calculation under §2S1.1(a). He therefore had sufficient notice that it might be more appropriate. In addition, even if the court had erred by denying him notice, any error was harmless. Because defendant was a part of the conspiracy that produced the laundered funds, §2S1.1(a)(1), not (a)(2), was the proper method. U.S. v. Stanford, __ F.3d __ (5th Cir. May 18, 2016) No. 15-40127.
1st Circuit rules gun sentence above mandatory minimum was variance, not departure. (761) Defendant pled guilty to drug and firearms charges. The parties agreed to recommend a prison sentence of 60 months, the statutory minimum, for a § 924(c) firearm conviction, but the district court imposed a sentence of 360 months for the § 924(c) count. The court explained that it was using the 18 U.S.C. § 3553(a) factors to select a sentence within the range of statutorily permissible sentences, which spanned from 60 months to life in prison. Defendant argued that the sentence was procedurally unreasonable because the variant sentence for the § 924(c) conviction was actually a “departure” and thus required prior notice under Federal Rule of Criminal Procedure 32(h). The First Circuit found that this argument was based on a contention that, with respect to § 924(c), the guidelines make any sentence over the mandatory minimum a “departure” rather than a “variance.” But that contention was contrary to case law. There was only a variance here. U.S. v. Rivera-Gonzalez, __ F.3d __ (1st Cir. Jan. 8, 2016) No. 14-1402.
1st Circuit allows consideration of local violent crime rate in varying upward. (741)(761) Defendant pled guilty to firearm charges, resulting in a guideline range of 24-30 months. The district court sentenced him to 60 months. Defendant argued for the first time on appeal that the district court improperly considered, and relied too heavily on, Puerto Rico’s violent crime rate. The First Circuit disagreed. In sentencing, district courts may consider community-based and geographic factors, including “the incidence and trend lines of particular types of crime in the affected community.” Although it is possible for a sentencing judge to focus too much on the community and too little on the individual, that did not happen here. It was clear from the record that the court’s primary consideration in varying upward was the fact that a Puerto Rico court had found probable cause to believe defendant committed a murder with the weapon he was charged with possessing. The panel also rejected defendant’s claim that the district court erred by failing to give him notice that it was contemplating a “departure” based on Puerto Rico’s violent crime rate. Rule 32(h) does not apply to 18 U.S.C. §3553 variances. U.S. v. Pantojas-Cruz, __ F.3d __ (1st Cir. Aug. 28, 2015) No. 14-1665.
7th Circuit outlines four sentencing principles for imposing conditions of supervised release. (580)(761) In a consolidated opinion that resolved similar challenges to conditions of supervised release, the Seventh Circuit outlined four general sentencing principles sentencing judges should follow. First, judges should give advance notice of the conditions of release being considered. This principle generally fit into the category of recommended “best practice” rather than a mandatory requirement. Advance notice is only required of supervised release conditions that are not listed in a statute or the guidelines. Second, a sentencing court must justify the conditions and the length of the term at sentencing by an adequate statement of reasons, reasonably related to the applicable §3553(a) factors. All discretionary conditions, whether standard, special or of the judge’s own invention, required findings. Third, sentencing judges should impose conditions of supervised release that are (a) appropriately tailored to the defendant’s offense, personal history and characteristics; (b) involve no greater deprivation of liberty than reasonably necessary to achieve the goals of deterrence, protection of the public, and rehabilitation; and (c) sufficiently specific to place the defendant on notice of what is expected. Fourth, the court should orally pronounce all conditions from the bench, and when there is a conflict between an oral and later written sentence, the oral judgment pronounced from the bench controls. U.S. v. Kappes, __ F.3d __ (7th Cir. Apr. 8, 2015) No. 14-1223.
1st Circuit says no advance notice required where court varied upward rather than departing. (761) Defendant pled guilty to firearms charges. His PSR recommended the mandatory minimum 60-month sentence, but the district court found that an 84-month sentence was more appropriate, given defendant’s extensive criminal history. Defendant argued that the district court departed from the guidelines without first providing him with the notice required by Fed.R.Crim.P. 32(h). The First Circuit found that no notice was required, since the court applied a variance, rather than an upward departure. First, nothing in the record, ranging from the PSR to the sentencing hearing, suggested that the district court ever considered a departure. The district court followed the steps typical of a variance when imposing the sentence: it calculated the guidelines range, examined the factors, and imposed an above-guidelines prison term. Moreover, the court specifically cited 18 U.S.C. §3553(a) at the time that it increased the sentence. U.S. v. Oquendo-Garcia, __ F.3d __ (1st Cir. Apr. 9, 2015) No. 14-1368.
8th Circuit says rejecting minor participant reduction was not upward departure. (445)(761) Defendant pled guilty to drug conspiracy charges. His PSR included in its offense level calculations a two-level reduction under §3B1.2(b) for being a minor participant. Nonetheless, at sentencing, the district court rejected a minor participant reduction. Defendant characterized the court’s decision not to grant him the minor role reduction as an “upward departure” and claimed the court procedurally erred by not giving notice as required by Federal Rule of Criminal Procedure 32(h). The Eighth Circuit disagreed, holding that the court’s rejection of the minor participation reduction did not constitute an upward departure requiring notice. Departure is a term of art under the guidelines and refers only to non-guidelines sentence imposed under the framework set out in the guidelines. The court did not “depart” when it assessed defendant’s role in the conspiracy and decided to forego the minor participant reduction. Defendant bore the burden of persuading the court to apply the reduction. His claim that he was “blindsided” by the court’s decision did not absolve him of this burden. U.S. v. Soto, __ F.3d __ (8th Cir. Feb. 24, 2015) No. 14-2545.
1st Circuit finds no plain error where defendant was aware of mandatory minimum and consecutive sentence requirement. (330)(761) Defendant pleaded guilty to two robbery charges, and one firearms charge. The firearms charge carried a possible death sentence and required a mandatory minimum of ten years, to be served consecutively to any other sentence. The district court sentenced defendant to 40 years: 20 for the two robbery counts, served concurrently, and 20 for the firearm count, served consecutively. Defendant argued for the first time on appeal, and the government conceded, that the district court erred by failing to give notice of the 10-year mandatory minimum for firearm charge, or the requirement that the sentence be served consecutively. On plain error review, the First Circuit found that defendant’s substantial rights were not affected by this error, and affirmed. To establish plain error, defendant was required to show “a reasonable probability that, but for the error, he would not have entered the plea.” However, the record clearly showed that defendant was aware at that hearing of the mandatory ten-year minimum for the firearm count and that it was consecutive. There was little probability that he would not have entered his plea had he been informed of those facts at the Rule 11 hearing. U.S. v. Santiago, __ F.3d __ (1st Cir. Dec. 24, 2014) No. 14-1219.
1st Circuit does not require notice under Rule 32(h) of court’s choice of guidelines. (761) Defendant was convicted of drug trafficking conspiracy and money laundering charges. Her PSR had calculated defendant’s base offense level using the quantity of drugs underlying her drug-trafficking conviction. The district court ignored the probation officer’s recommendation to determine defendant’s base offense level using the quantity of drugs, and instead relied on the amount of laundered funds, which it calculated to be $1,153,137.30. Defendant argued that the district court should have given her advance notice under Fed.R.Crim.P. 32(h) that it intended to use the value of the laundered funds, instead of the quantity of drugs, to calculate her base offense level. The First Circuit held that Rule 32(h) was inapplicable to defendant’s sentence. The Supreme Court has interpreted Rule 32(h) narrowly, holding that the rule applies only to authorized “departures” under the Sentencing Guidelines and not to “variances,” that result from the sentencing judge’s consideration of factors under 18 U.S.C. § 3553. The district court sentenced defendant to 121 months, which was within the guidelines range of 121-151 months. U.S. v. Adorno-Molina, __ F.3d __ (1st Cir. Dec. 19, 2014) No. 13-1065.
Supreme Court says notice is not necessary before court varies from Guideline range. (761) Federal Rule of Criminal Procedure 32(h) provides that before a court may depart from the applicable Guideline sentencing range on a ground not identified in the presentence report or the party’s pre-sentencing submissions, it must give the parties reasonable notice that it is contemplating a departure. The Supreme Court, in a 5-4 decision in which Justice Stevens wrote the majority opinion, held that Rule 32(h) does not apply when a district court exercises its authority under Booker to impose a sentence that varies from the advisory Guidelines range. The Court noted, however, that “sound practice dictates that judges in all cases should make sure that the information provided to the parties in advance of the hearing, and in the hearing itself, has given them an adequate opportunity to confront and debate the relevant issues.” Irizarry v. U.S., 553 U.S. 708, 128 S.Ct. 2198 (2008).
Supreme Court to decide if notice is required before departure from guidelines sentence. (761) In Burns v. U.S., 501 U.S. 129 (1991), the Supreme Court held that under Federal Rule of Criminal Procedure 32, a district court contemplating a departure from the range set by the Sentencing Guidelines on a ground not identified in the presentence report must give the parties notice of its intent to depart. The Supreme Court granted certiorari to decide if Burns has continuing application under the advisory guidelines regime to the district court’s decision to impose a sentence outside the guidelines. The courts of appeals are divided on this issue. Irizarry v. U.S., __ U.S. __, 128 S.Ct. __ (Jan. 4, 2008) (granting certiorari).
Supreme Court holds that Rule 32 requires “reasonable” notice and opportunity to be heard before the court departs from the guidelines. (761) In a 5-4 opinion written by Justice Marshall, the Supreme Court held that “before a district court can depart upward on a ground not identified as a ground for upward departure either in the presentence or in a prehearing submission by the government, Rule 32 requires that the district court give the parties reasonable notice that it is contemplating such a ruling.” This notice must specifically identify the ground on which the district court is contemplating an upward departure. The court did not decide how much notice is “reasonable,” leaving it to the lower courts to adopt appropriate rules. Justices Souter, White, O’Connor and Chief Justice Rehnquist dissented. Burns v. U.S., 501 U.S. 129, 111 S.Ct. 2182 (1991).
1st Circuit approves upward variance despite lack of notice to defendant. (761) Defendant pled guilty to robbery and firearm charges, and received consecutive sentences of 72 months for Count One and 84 months for Count Two, which represented an upward variance from his guideline range. The First Circuit rejected defendant’s argument that Rule 32(h) required advance notice in the case of a variance. This argument was flatly rejected by the Supreme Court in Irizarry v. U.S., 553 U.S. 708 (2008) (“The fact that Rule 32(h) remains in effect today does not justify extending its protections to variances ….”). The panel also rejected defendant’s claim that the district court failed to adequately weigh the § 3553(a) factors and “relied on the incorrect premise of a pattern of unlawful behavior” inferred from defendant’s arrest record. The court said it had considered the § 3553(a) factors, and gave specific attention to “the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, … [and] to protect the public from further crimes of the defendant.” § 3553(a)(2)(A)-(C). Although the district court did not go through each of the § 3553(a) factors one by one, case law did not demand such an exhaustive approach. U.S. v. Aponte-Vellon, __ F.3d __ (1st Cir. June 13, 2014) No. 13-1302.
1st Circuit says court need not give notice that it would not follow sentence recommendation. (761) Defendant’s plea agreement provided that the parties would jointly recommend to the sentencing court a sentence at the lower end of his applicable sentencing range. At sentencing, the district court instead imposed a sentence near the mid-point of the range. The First Circuit rejected defendant’s claim, under Burns v. U.S., 501 S.Ct. 129 (1991), that the district court erred by failing to give him advance notice that it would not follow the parties’ sentencing recommendation. First, in the post-Booker era, the Supreme Court has refused to expand the notice requirement in Burns beyond the narrow confines of a sentencing departure. Second, the court here imposed a sentence within the advisory guideline range, a range agreed to by the parties and discussed in the PSR. U.S. v. Fernandez-Cabrera, 625 F.3d 48 (1st Cir. 2010).
1st Circuit finds no unfair surprise where upward variance was based on undisputed details of crime. (761) Defendant was convicted of armed carjacking and related firearms offenses. He appealed his sentence of 240 months, which was an upward variance from the guideline range of 177-191 months. The court gave no notice that it might impose an upward variance. After ruling that advance notice of a variance is required only where there would be unfair surprise, the First Circuit en banc found no unfair surprise here. The judge relied on three details of the crime – that it involved the invasion of a home, death threats and a near-miss firing of a gun – and that defendant had been previously arrested (but not convicted) on charges of violent crime. The details of the crime were well known to counsel, and defendant had admitted his prior offenses which were noted in the PSR. While defense counsel may not have anticipated that the judge would rely on those particular facts to impose an above-guideline sentence, this would not have made any obvious difference. The facts themselves were familiar and undisputed, so there was no concern that counsel might have been able, with notice, to challenge them. The judge is not required to explain his reasoning before counsel make their arguments. U.S. v. Vega-Santiago, 519 F.3d 1 (1st Cir. 2008) (en banc).
1st Circuit, en banc, says notice of variance is only required if parties would be unfairly surprised. (761) Ruling before the Supreme Court decided Irizarry v. U.S., 553 U.S. 708, 128 S.Ct. 2198 (2008), the First Circuit, en banc, held that when a district court sua sponte imposes a sentence that varies from the Sentencing Guidelines, the court is not automatically required to provide advance notice of the variance. Under Booker, Rita, and Gall, the sentencing inquiry is far more broad, open-ended and discretionary than it was before these cases. Throughout the sentencing hearing, the judge may well be revising his views depending on what is presented and how counsel responds to questions. Therefore, advance notice of a variance is not automatically required. However, when proposing to adopt a variance sentence on some ground or factor that would unfairly surprise competent and reasonably prepared counsel, a judge must either provide advance notice or grant a continuance. U.S. v. Vega-Santiago, 519 F.3d 1 (1st Cir. 2008) (en banc).
1st Circuit holds that error in failing to completely disclose contents of juvenile record was harmless. (761) The guidelines permit a district court to include defendant’s juvenile record in its criminal history calculation. § 4A1.2 (d)(2). Under the Puerto Rico Rules of Procedure for Minors’ Matters, however, juvenile records must be sealed, and access to them is strictly limited. Defendant argued that the district court improperly relied on his confidential juvenile record in sentencing him without sufficiently disclosing the content of that record to him, in violation of Fed. R. Crim. P. 32. The First Circuit held that any error was harmless. Defendant still had a sufficient basis for disputing the violations. Defendant’s submissions indicated that he had substantial familiarity with his own criminal history, and knew enough about it to argue that his history should not be included as a separate offense in his sentencing. In light of this conceded knowledge, there was no reason to believe that the court’s failure to offer a full explanation of defendant’s juvenile record impaired his ability to contest the court’s reliance on that record in its sentencing. U.S. v. Guadalupe-Rivera, 501 F.3d 17 (1st Cir. 2007).
1st Circuit holds that court’s reference to testimony from co-defendants’ trial was not improper. (761) Defendant argued that the district court erred when it failed to notify him that it would rely on testimony from his co-defendants’ trial in deciding whether to sentence him within the guideline range. He claimed he had no knowledge of the prior trial testimony and was blind-sided by the contention that he was a significant supplier of drugs to the conspiracy. The First Circuit found no error. The court mentioned the testimony it had heard at trial to emphasize that it was familiar with both the length of time the conspiracy had operated and the quantity of drugs that had been involved. By doing so, the judge was responding to defense counsel’s argument that her client was a “peripheral supplier” who had supplied only small amounts of cocaine. This information was not new to defendant and his counsel. The length of the conspiracy and quantity of drugs involved were set forth in the indictment, plea agreement and PSR. The government consistently maintained, throughout the proceedings below, that defendant was a “main supplier to the organization.” U.S. v. Rivera-Rodriguez, 489 F.3d 48 (1st Cir. 2007).
1st Circuit says consideration of late submission was not reversible error where defendant had time to respond. (761) Defendant pled guilty to possession of child pornography. Several months after the probation office issued its PSR, the FBI reviewed the images seized from defendant’s home and advised the government that some of the images depicted sadistic or masochistic conduct. The government then notified the probation office and defense counsel of this information. The probation office issued a revised PSR that recommended, among other things, a two-level enhancement under § 2G2.4 (b)(4) for images depicting sadistic or masochistic conduct. Defendant argued that the enhancement was error because the government failed to raise it in its initial objections to the PSR. Rule 32(f)(1) requires a party to file objections to a PSR within 14 days of receipt of the PSR. The First Circuit held that the sentencing court’s consideration of the late submission was not reversible error because defendant suffered no prejudice. Any prejudice resulting from the government’s late submission was cured because defendant clearly had an opportunity to respond. His objections to the enhancement were noted in the PSR, and the court heard defendant’s arguments on the enhancement at the sentencing hearing. U.S. v. Rolfsema, 468 F.3d 75 (1st Cir. 2006).
1st Circuit remands for resentencing as to length of terms of supervised release. (761) Defendants pled guilty to drug conspiracy charges, and received, in part, ten-year terms of supervised release. In U.S. v. Cortes-Claudio, 312 F.3d 17 (1st Cir. 2002), the court held that 21 U.S.C. § 841(b), which mandates a term of supervised release of “at least five years” for covered drug-trafficking offenses, means that a court can impose a turn of supervised release for such an offense in excess of five years. However, a term of more than five years constitutes an upward departure from the guidelines. Thus, the sentencing court must give prior notice to the defendant of its intent to impose a term of such an extended duration and must state on the record the aggravating circumstances that justify the upward departure. Because the district court failed to give such notice, the First Circuit remanded for resentencing. U.S. v. Matos, 328 F.3d 34 (1st Cir. 2003).
1st Circuit holds that § 841’s provision for supervised release control over general supervised release statute. (761) “Except as otherwise provided,” the maximum supervised release term for Class A and Class B felonies is five years. 18 U.S.C. § 3583(b). However, 21 U.S.C. § 841(b)(1)(A), mandates a supervised release term of “at least five years.” This language in § 841(b) established a mandatory minimum term of supervised release, not a maximum. U.S. v. Lopez, 299 F.3d 84 (1st Cir. 2002). The First Circuit held that § 841(b)’s provisions for supervised release controlled over the general supervised release statute. The maximum five-year supervised release term in § 3583(b) is not applicable. The phrase “[e]xcept as other provided” indicates that § 3583(b) yields to other more specific statutes, such as § 841, that make different provisions for terms of supervised release for particular offenses. However, the district court erred when it sua sponte departed upward to impose a ten-year supervised release term. Under the guidelines, defendant was subject to a three- to five-year supervised release term, U.S.S.G. § 5D1.2(a)(1). The court apparently overlooked this fact, stating that the ten-year period of supervised release was “within the sentencing guidelines.” Thus, the court committed two errors: failing to provide the parties with notice of the potential upward departure, see Burns v. U.S., 501 F.3d 129 (1990) and not making the required findings of an aggravating or mitigating circumstances to support the departure. U.S. v. Cortes-Claudio, 312 F.3d 17 (1st Cir. 2002).
1st Circuit rejects departure where defendant received no notice. (761) Defendant was convicted of being a felon in possession of a firearm. The district court departed upward by four levels based in part on the fact that defendant’s 19 criminal history points were six points more than the threshold for criminal history category VI. The First Circuit found it unnecessary to address this ground for departure, because defendant received no notice that the court intended to depart on this basis, in violation of USSG § 6A1.3(a) and Fed. R. Crim. P. 32(c)(1). See Burns v. U.S., 501 U.S. 129 (1991). The court made a four-level departure, and attributed two levels explicitly to § 4A1.3, the basis for which defendant received no notice. The other departures were not assigned any particular increase, the court simply moved up to the statutory maximum in reliance on the two additional provisions. One of these provisions was inapplicable. Therefore, it was impossible to conclude the court would have ordered the same upward departure solely on the remaining ground. Therefore, the error was not harmless. U.S. v. Diaz, 285 F.3d 92 (1st Cir. 2002).
1st Circuit holds that defendant was not entitled to advance notice of alcohol restriction. (761) The district court ordered that defendant abstain from the use of alcohol during his period of supervised release. The First Circuit rejected defendant’s claim that he was entitled, under Burns v. United States, 501 U.S. 129 (1991), to advance notice of the court’s intention to impose the “stay dry” condition. Burns dealt with departures from the guidelines that, almost by definition, deviate from those typically imposed on similar offenders for similar offenses. In contrast, the guidelines contemplate, and thus give notice, that a sentencing court will tailor supervised release conditions to fit the circumstances of the offense and the characteristics of the offender. “A defendant rarely, if ever, will be able to claim unfair surprise when the sentencing court establishes the conditions of supervised release.” A standard condition of supervised release prohibits excessive drinking. USSG § 5D1.3(c)(7). The court’s “stay dry” condition merely amplified this standard condition. Moreover, the facts of the case supported the condition. Defendant’s criminal history demonstrated a long-standing problem with alcohol, and a propensity to commit crimes when intoxicated. U.S. v. Brown, 235 F.3d 2 (1st Cir. 2000).
1st Circuit says defendant not entitled to notice of court’s intent to diverge from PSR’s recommendations. (761) Defendant claimed that the government surprised him at sentencing by objecting for the first time to the PSR’s characterization of him as a § 3B1.2(b) minor participant. Under Rule 32(b)(6)(B), the parties are instructed to exchange objections to the PSR within 14 days after receiving it. However, the district court stated that it would not have accepted the PSR’s recommendations even without the government’s objection. Defendant argued that, if so, the district court should have notified the defense in advance of the hearing of its intent not to follow the PSR. In U.S. v. Canada, 960 F.2d 263 (1st Cir. 1992), the First Circuit held that a court need not provide notice of its intended divergence from the report prior to the hearing. So long as the court’s determination involved adjustments under the provisions of the guidelines and not a departure, “the guidelines themselves provide notice of the issues about which he may be called upon to comment.” Accordingly, the First Circuit found no error here in the procedure used at sentencing. U.S. v. Portela, 167 F.3d 687 (1st Cir. 1999).
1st Circuit says late delivery of PSR addendum harmless error. (761) Rule 32 requires a probation officer to distribute the PSR, together with any addendum, seven days before the sentencing hearing. Defendant argued that the probation officer’s failure to distribute the addendum to the PSR in a timely manner denied him the opportunity to prepare a rebuttal to the PSR and created unfair surprise, and as a result, defense counsel was unable to explain the PSR to defendant. The First Circuit rejected the claims. The lower court postponed the disposition hearing for two months to give defense counsel more time to review the PSR. During this two-month period, defense counsel filed several objections, which prompted the addendum. Although defendant counsel did not receive the addendum until the day before sentencing, the addendum did no more than respond to the points that defense counsel had raised. At sentencing, defense counsel argued eloquently concerning the PSR’s conclusions. Defendant could not claim unfair surprise. He had already been granted a generous continuance and had two months to prepare a rebuttal. The addendum did not contain any new information; it merely referenced trial testimony to refute defendant’s objections. Finally, defendant told the court at sentencing that he had reviewed the PSR with his attorney. U.S. v. Marrero-Ortiz, 160 F.3d 768 (1st Cir. 1998).
1st Circuit holds failure to give notice of upward departure was plain error. (761) At sentencing, the government sought an upward departure of two years based on defendant’s 18‑month flight from justice. The district court rejected this ground for departure, but sua sponte departed upward by two years based on the “egregiousness” and “evilness” of defendant’s conduct. The PSR did not contain any information suggesting an upward departure on this ground, and the government even advised the court that the guidelines adequately addressed the enormity of defendant’s offense. The First Circuit held that the court’s failure to give defendant advance notice of the contemplated ground for departure, as required by Burns v. U.S., 501 U.S. 129 (1991), was plain error. The plain error affected defendant’s substantial rights, since it increased his sentence by two years. Rather than remanding for resentencing, the appellate court simply reduced defendant’s sentence by two years, the amount of additional time imposed pursuant to the unlawful departure. U.S. v. Mangone, 105 F.3d 29 (1st Cir. 1997).
1st Circuit finds government made loss documents available to defense. (761) Defendant fraudulently obtained numerous credit cards, used them, and then reported them as stolen. He argued that the government’s failure to provide him with documentation supporting its loss estimate deprived him of a fair sentencing procedure. The First Circuit held that defendant was not entitled to any relief. Defendant only had himself to blame for any gaps in his knowledge of the government’s sentencing proposals. Defense counsel conceded that he did not request any data from the prosecution, nor did he ask the court to compel the disclosure of any evidence. Three weeks before sentencing the government filed a sentencing memorandum setting forth its position on the loss amount. Four days before sentencing the prosecutor called defense counsel to allow him to inspect and copy the materials referred to in the memorandum. Defense counsel refused, citing a strategic choice to pursue a prosecutorial misfeasance argument. U.S. v. Phaneuf, 91 F.3d 255 (1st Cir. 1996).
1st Circuit does not require notice of court’s intent to apply enhancement not recommended in presentence report. (761) Defendant received a leadership enhancement under section 3B1.1 even though his presentence report did not recommend the adjustment. The 1st Circuit rejected defendant’s claim that Burns v. U.S., 111 S.Ct. 2182 (1991), a court must give advance notice of its intent to consider an enhancement not recommended in the presentence report. Burns dealt with a court’s sua sponte decision to depart upward from the guidelines. Such departures are a concern because the guidelines place almost no limit upon the number of potential factors that may warrant a departure. In contrast, the guidelines define specific and finite factors warranting the application of an upward or downward adjustment to defendant’s guideline range. The guidelines themselves provide a defendant with sufficient notice under Rule 32 of the issues about which he may be called upon to comment at his sentencing hearing. U.S. v. Canada, 960 F.2d 263 (1st Cir. 1992).
1st Circuit rules defendant waived right to challenge late notice of government’s intent to seek enhancement. (761) The government did not notify defendant or the trial court of its intent to seek an enhancement under section 2J1.3(b)(2) until the morning of defendant’s sentencing. The 1st Circuit ruled that defendant waived his right to challenge his late notice of the enhancement. The district court offered to postpone its proceedings so that defendant might have additional time to brief the enhancement issue. Defendant declined the invitation in the interest of bringing the matter to a close. He informed the court that he was familiar enough with the pertinent case law to argue the matter and proceeded to do so. U.S. v. Butt, 955 F.2d 77 (1st Cir. 1992).
2nd Circuit says defendant was not entitled to notice of court’s intent to vary upwards from Guidelines. (761) Defendant argued that the district court deviated from the 2003 Guideline range without giving him prior notice of its intention to do so, and thus deprived him of a meaningful opportunity to be heard. The Second Circuit found no error because (1) defendant clearly had adequate notice of the court’s intent to sentence above the Guideline range since the court had already done it once, and (2) defendant was not entitled to notice of the court’s intent to vary upwards from the Guidelines. In the wake of Booker, the Supreme Court has ruled that Burns v. U.S., 501 U.S. 129 (1991), and Rule 32(h) do not extend to variances, as opposed to departures. As a result, a sentencing court is not obligated to provide advance notice to a defendant of its intention to impose a non-Guidelines sentence. U.S. v. Gilmore, 599 F.3d 160 (2d Cir. 2010).
2nd Circuit finds court failed to provide sufficient notice of intent to impose sentence above guideline range. (761) Defendant pled guilty to mail fraud. At sentencing, the district court sua sponte departed 12 months above the highest end of the guideline range that it found applicable. A district court must provide reasonable prehearing notice of its intent to consider a sentence above the guideline range. The Second Circuit ruled that notice given here by the court during the course of the sentencing hearing and put into effect less than two hours later was insufficient. On remand, the district court must provide defendant with notice so as to avert “unfair surprise” as well as facilitate “adversarial testing of factual and legal considerations relevant” to the contemplated departure. U.S. v. Cole, 496 F.3d 188 (2d Cir. 2007).
2nd Circuit holds court is not required to give notice before sua sponte imposing non-guideline revocation sentence. (761) Guideline § 7B1.4 recommended a three-to-nine month sentence for defendant’s violation of supervised release, but the district court sentenced defendant to one year, noting that he received a tremendous break on his original sentence, and that he continued to violate supervised release on multiple occasions. Defendant argued that the district court erred when it failed to give him notice that it intended to impose a sentence outside the range recommended by the guidelines. In U.S. v. Pelensky, 129 F.3d 63 (2d Cir. 1997), decided a decade earlier, the court rejected a similar challenge, ruling that because the guidelines governing the revocation of supervised release were non-binding policy statements, the court was not required to give notice before imposing a revocation sentence outside the recommended sentencing range. The Second Circuit held that Booker did not change this holding. While this court has held that a defendant must receive notice when a judge sua sponte imposes a non-guideline sentence, U.S. v. Anati, 457 F.3d 233 (2d Cir. 2006), abrogated by Irizarry v. U.S., 553 U.S. 708, 128 S.Ct. 2198 (2008), there is a distinction between policy statements and sentencing guidelines. The policy statements relating to violations of supervised release were advisory in 1997, and remain so today. The status of those policy statements has not changed. Anati sought to give vitality to the notice and comment requirements of Rule 32(i)(1)(C) in light of the district court’s continued obligation to consider the appropriate guideline range in determining a procedurally and substantive reasonable sentence. Anati did not alter Pelensky’s holding. U.S. v. Hargrove, 497 F.3d 256 (2d Cir. 2007).
2nd Circuit holds imposing sentence above advisory guideline range without advance notice to defendant was plain error. (761) In U.S. v. Anati, 457 F.3d 233 (2d Cir. 2006), abrogated by Irizarry v. U.S., 553 U.S. 708, 128 S.Ct. 2198 (2008), the Second Circuit held that the Federal Rule of Criminal Procedure 32(i)(1)(C) requires a district court to provide a defendant with notice of its intent to impose an adverse non-guidelines sentence and an opportunity to challenges the grounds for such a sentence. Here, the Second Circuit held that the district court committed plain error by imposing a sentence above the advisory guideline range without giving notice to defendant of its intent to do so. The failure to give the notice was error, the error was plain because the holding in Anati was clear, and the error affected defendant’s substantial right. Defendant was sentenced to a term 15 years longer than the statutory minimum, and 20 years longer than the guideline maximum. He identified on appeal several arguments he could have made to challenge the court’s decision to impose a dramatically more severe non-guideline sentence had notice been provided. U.S. v. Gilmore, 471 F.3d 64 (2d Cir. 2006).
2nd Circuit reversed where court gave conclusory one sentence reason for departure. (761) Upon discovery of a guideline range miscalculation, and a mistaken sentence based upon that miscalculation, the district court decided to retain the sentence, and in order to reconcile the discrepancy, awarded a downward departure “for mitigating factors which weren’t contemplated.” The Second Circuit reversed. The district court’s explanation of its decision to depart was conclusory. Moreover, no notice was given to the government by the court of its intent to depart downward. On remand, the court must adhere to the requirements of the PROTECT Act to state in open court, as well “with specificity in the written order and judgment,” reasons for imposing a sentence outside the guidelines. U.S. v. Nuzzo, 385 F.3d 109 (2d Cir. 2004).
2nd Circuit says Rule 32 does not require notice that PSR information would be used to impose fine. (761) Defendant argued that his $500,000 fine was improper because he did not receive adequate notice that material in the PSR would be taken into account in determining his fine. The Second Circuit held that Rule 32 does not require notice that PSR information will be used in imposing a fine. Rule 32(b)(6) does require that a defendant be given an opportunity to contest the factual and legal determinations in a PSR. This is designed “to ensure that the PSR is completely accurate in every material respect, thereby protecting a defendant from being sentenced on the basis of materially untrue statements or misinformation.” The rule does not require notice of how PSR information will be used. Here, the PSR was furnished to defendant and he was provided an opportunity to state his objections to the report’s contents. The PSR specifically discussed the profits earned by defendant. Thus, defendant was provided adequate notice under Rule 32. The $500,000 fine was reasonable. The district court found that while defendants were on bail and during trial, they made about $1.7 million in profits from continued drug distribution. U.S. v. Greer, 285 F.3d 158 (2d Cir. 2002).
2nd Circuit holds that court cured error in failing to give adequate notice of intent to depart. (761) The district court first notified defendant of its intent to depart on the day of sentencing. After defendant objected, the court withheld rendering final sentence until after it had reviewed written submissions in opposition to the departure. The next day, defense counsel filed a motion challenging the departure. Two days later, the court held oral argument regarding defendant’s motion. The court then denied defendant’s motion and imposed its original sentence. The Second Circuit agreed that the district court did not provide adequate notice of its intent to depart as required by Burns v. United States, 501 U.S. 129 (1991). However, the court cured this error. After realizing that defendant counsel was entitled to adequate notice of the departure, the court gave defendant two opportunities to address the grounds. First, before entering judgment, the court permitted defense counsel to submit written opposition to the upward departure. Second, the court reconvened the sentencing hearing three days later so that defense counsel could argue orally against the departure. There was no indication that the court did not give full consideration to defendant’s arguments. U.S. v. Carter, 203 F.3d 187 (2d Cir. 2000).
2nd Circuit finds late disclosure of victim’s letter was harmless where defendant already had information. (761) Defendant, a citizen of Germany, made numerous threatening phone calls from Germany to his former girlfriend in the U.S. Several nights after the last of these calls, he was discovered in the woman’s backyard outside her bedroom window. Defendant argued that he was denied due process because the district court considered at sentencing a letter from the victim that was not disclosed to defendant until after he was sentenced. The Second Circuit found that error in not timely disclosing the letter was harmless. The bulk of the letter dealt with how defendant’s actions had affected the woman and her daughter, a summary of which appeared in the PSR’s victim impact section. The essence of other assertions in the letter was included in other documents that were given to defendant. Also, although the district court mentioned the letter at the sentencing hearing, its statement indicated that the contents of the letter were not relied on in sentencing defendant. U.S. v. Berndt, 127 F.3d 251 (2d Cir. 1997).
2nd Circuit remands where court made sua sponte departure from guidelines’ fine range. (761) The district court sua sponte departed upward from the guidelines’ fine range and imposed a $500,000 fine on defendant. Defendant contended, and the government conceded, that the fine should be vacated because he did not receive advance notice that the court was going to depart upward. The Second Circuit agreed that resentencing was required on this point. U.S. v. Gabriel, 125 F.3d 89 (2d Cir. 1997), overruling on other grounds recognized by U.S. v. Quattrone, 441 F.3d 153 (2d Cir. 2006).
2nd Circuit affirms firearm enhancement despite acquittal and omission from PSR. (761) Defendant was convicted of various crimes in connection with his participation in a large drug organization. The district court applied a § 2D1.1(b)(1) enhancement based on defendant’s use of a firearm in connection with the murders of four unnamed Colombians. Defendant argued that this was impermissible because there was no recommendation for such an enhancement in the PSR, the government did not object to the lack of such an enhancement, and the jury acquitted him of the murders. The Second Circuit affirmed the enhancement. The sentencing judge was not bound by the sentencing recommendations of the PSR. Defendant did not claim he was denied the opportunity to oppose the government’s tardy request for the enhancement. A sentencing court is entitled to rely on any type of information known to it, including evidence at trial that the jury viewed as insufficient to convict beyond a reasonable doubt. The court was free to consider the evidence concerning the murder of the four Colombians despite defendant’s acquittal. The district court found the evidence established by more than a preponderance of the evidence that defendant possessed guns “on a regular basis” in connection with the gang’s drug trafficking activity. U.S. v. Miller, 116 F.3d 641 (2d Cir. 1997).
2nd Circuit requires disclosure of probation officer’s oral statement contradicting PSR recommendation. (761) Defendant’s PSR recommended a two level acceptance of responsibility reduction. The judge denied the reduction, explaining that there was no credible indication of acceptance of responsibility. Also, before sentencing, she had asked the probation officer to clarify why he had recommended the reduction. The probation officer said it was “boiler plate,” and he could not stand by the recommendation. The Second Circuit held that the district court should have disclosed the probation officer’s oral statement, because Rule 32(c)(1) requires that defense counsel be given the opportunity to comment on the probation officer’s determinations. However, the error here was harmless. The judge explained that she denied the reduction because she did not find a credible indication that defendant accepted responsibility. This type of credibility determination is a valid basis on which to deny the reduction. U.S. v. Rivera, 96 F.3d 41 (2d Cir. 1996).
2nd Circuit rules defendants had adequate notice of departures and enhancements. (761) Defendants argued that the district court failed to provide notice of departures and sentence enhancements sufficient to satisfy Rule 32. The Second Circuit ruled that the notice was adequate. Over a two‑week period, the district court issued three notices to each defendant that it was contemplating departing upward. The first notice cited grounds listed in the PSR, the second notice listed obstruction of justice and the adverse impact defendants’ activities had on the state and on various persons, while the third stated that court was considering obstruction of justice enhancements. Thus, even if Burns notice were required for obstruction of justice enhancements, the requirement was satisfied. Defendants were given reasonable notice of the basic facts and transactions that support the resulting enhancements and departures. The sentencing court was entitled to rely on the information generally known to it. Defendants had the opportunity to dispute the evidence in the PSR, the court’s three notices, and the government’s responses. U.S. v. Sisti, 91 F.3d 305 (2d Cir. 1996).
2nd Circuit says failure to give notice of alternative fine was harmless error. (761) Defendant, a chairman and trustee of an employee pension fund, agreed to vote in favor of an investment in return for a payment from the company of five percent of each investment. He challenged the imposition of a $250,000 alternative fine under 18 U.S.C. § 3571(b)(3) on the ground that he was not given prior notice that the court was considering such a departure as required by Fed. R. Crim. P. 32. The Second Circuit found any error harmless. The main argument that defendant claimed he would have made was that he was already subject to lawsuits from the pension fund and the investment company’s trustee in bankruptcy. The district court, however, clearly contemplated defendant’s liability to these parties when it chose not to award restitution. U.S. v. Lopreato, 83 F.3d 571 (2d Cir. 1996).
2nd Circuit requires advance notice of court’s intent to apply enhancement under different guideline. (761) Defendant pled guilty to assisting her partner in filing a false federal income tax return. The probation office found that § 2T1.4 was the appropriate guideline, and the government agreed. However, at sentencing, the district court found that defendant and her partner should be treated equally, and thus enhanced her offense level by two for failing to report the criminal source of her income. This enhancement did not fall under § 2T1.4, but § 2T1.9. The Second Circuit held that the district court erred in applying the enhancement without giving notice and an opportunity to be heard. Given the uncertainty shown by the court and the prosecutor concerning the applicable guideline, and the “too-frequent inadequacy of criminal defense lawyers,” it is unrealistic to hold that the guidelines themselves give a defendant all the notice required. Even on appeal, it was not clear what guideline the court relied on to warrant the enhancement. The partner’s failure to file a 1990 return had nothing to do with the offense to which defendant pled guilty. U.S. v. Zapatka, 44 F.3d 112 (2d Cir. 1994).
2nd Circuit holds that one week was adequate notice of letters from victims. (761) Defendant argued that the judge did not share with defense counsel the numerous letters he received from victims urging stiff penalties for defendant. The 2nd Circuit held that defendant had adequate notice of the letters, since the proceedings were adjourned and defendant had over one week in which to consider the letters and prepare a response. There was no claim that the letters contained inaccuracies or that the court was misled. U.S. v. Harris, 38 F.3d 95 (2nd Cir. 1994).
2nd Circuit holds court was not required at plea hearing to give notice of its intent to depart upward. (761) The 2nd Circuit held that the district court was not required to advise defendant, prior to accepting his guilty plea, that it intended to depart upward from the guidelines. Fed. R. Crim. P. 11 required the court to advise defendant of the maximum sentence he faced and to advise him generally about the guidelines. Of course, before departing upward from the guidelines, the court was required to give defendant notice and an opportunity to be heard. But the district court satisfied both of these obligations. At the plea hearing, the court informed defendant of the minimum and maximum sentences provided by statute, advised him that the guideline sentencing range was unclear and that even after the range was determined the court had the authority in some circumstances to impose a more severe sentence, and that if a more severe sentence were imposed, defendant would still be bound by the plea. One month prior to sentencing, the court advised both sides in writing that it was considering whether an upward departure might be appropriate in light of the drug quantity involved. No more was necessary. U.S. v. Rodriguez, 968 F.2d 130 (2nd Cir. 1992).
2nd Circuit rules government may appeal because it did not receive proper notice of possibility of departure. (761) Defendant argued that the government could not appeal the grounds relied upon by the district court to depart downward because the government failed to argue in the trial court that these factors were adequately considered by the sentencing commission. The 2nd Circuit found that because the government did not receive adequate notice of the possibility of departure, and thus contest the accuracy of the factor and the propriety of its use as a basis for departure, the government had the right to appeal. Only one of the four factors relied upon by the district court was identified in the presentence report. U.S. v. Alba, 933 F.2d 1117 (2nd Cir. 1991).
2nd Circuit finds defendant received adequate notice of upward departure. (761) Defendant argued that he did not receive proper prior notice of the district court’s intent to depart upward, as required by prior Circuit precedent. The 2nd Circuit found that defendant had received adequate notice, since the presentence report expressly warned the defendant of the exact ground for departure relied upon by the sentencing judge. Defendant had access to the report substantially prior to the sentence and had full opportunity to challenge its findings. Nothing in prior cases requires the judge to personally communicate notice to the defendant of the intent to depart upward. U.S. v. Contractor, 926 F.2d 128 (2nd Cir. 1991).
2nd Circuit holds that court’s failure to notify government that it intended to depart was harmless. (761) Defendant was convicted of bribing a New York City environmental control board inspector. The sentencing court departed downward from the guidelines, and imposed a sentence of 3 years probation and a $4,000 fine. Its stated reasons for the departure were that the defendant lacked a criminal record, had been gainfully employed for the past 9 years, and that the circumstances of the entire offense were somewhat unusual. The government appealed, claiming that under U.S. v. Kim, 896 F.2d 678 (2nd Cir. 1990), notice of intent to depart should be given to the government as well as to the defendant. The 2nd Circuit agreed, but found that the error was harmless because the government strenuously argued its position despite the lack of warning and was able to make a full proffer of the evidence supporting its argument. U.S. v. Jagmohan, 909 F.2d 61 (2nd Cir. 1990).
3rd Circuit affirms despite lack of notice that court would rely on testimony from associate’s sentencing. (761) Defendant and her criminal associate, Radomski, stole $1.7 million from friends and acquaintances. She argued for the first time on appeal that the court erred by failing to give her notice that it intended to rely on information from Radomski’s separate sentencing hearing. The Third Circuit held that any error did not affect defendant’s substantial rights. Defendant made no showing that if the court had given defense counsel notice, the court would have imposed a lesser sentence. Even if the court accepted that defendant would have called Radomski to the stand and thoroughly discredited him, defendant could not show this would have convinced the court to grant a downward departure or otherwise lessen her sentence. The court never determined that defendant bore more responsibility for the fraud. U.S. v. Berger, 689 F.3d 297 (3d Cir. 2012).
3rd Circuit holds failure to provide advance notice of intent to impose guideline variance did not violate due process. (761) In U.S. v. Vampire Nation, 451 F.3d 189 (3d Cir. 2006), the Third Circuit held that advance notice of a potential sentencing variance is not required under Rule 32(h). Here, defendant argued that the district court’s failure to provide advance notice of its intent to impose a sentence well above the advisory guideline range violated due process. The Third Circuit found no due process violation, but nonetheless ruled that the court’s failure to address defendant’s claim of unwarranted disparity rendered the sentence unreasonable. For substantially the reasons stated in Vampire Nation, the panel found the due process challenge unavailing. Due process in criminal sentencing requires that a defendant receive notice of and a reasonable opportunity to comment on the alleged factual predicate for his sentence, and the potential punishments which may be imposed. Defendant received this – he did not identify any fact relied on by the district court which was not included in the PSR. He also received adequate notice of the potential punishment when he was charged in a criminal information with an offense carrying a maximum sentence of 30 years. Moreover, while defendant claimed he had no notice that the district court would double his sentence based on victim impact statements, defendant did not specify the nature of any rebuttal evidence he would have offered if he had received prior notice. Nonetheless, remand was required, because the district court did not address at least one potentially meritorious argument advanced by defendant. When the record is inadequate, an appellate court will not fill in the gaps by searching the record for factors justifying the sentence. U.S. v. Ausburn, 502 F.3d 313 (3d Cir. 2007).
3rd Circuit holds that court is not obligated to provide advance notice of three-month upward variance. (761) Defendant was convicted of fraud charges stemming from his sale of illegally copied software. His advisory guideline range was 46-57 months, but the district court, after considering this advisory range, the grounds raised by the parties and the factors set forth in 18 U.S.C. § 3553(a), sentenced defendant to 60 months’ imprisonment. The Third Circuit rejected defendant’s claim that he was entitled to advance notice under Rule 32(h) of the court’s intent to vary from the advisory guideline range. Post-Booker, the element of unfair surprise that Rule 32(h) was intended to eliminate is not present. Sentencing is now a discretionary exercise, and includes a review of the factors set forth in § 3553(a). These factors are known prior to sentencing. Because defendants are aware that district courts will consider the broad range of factors set forth in § 3553(a) at sentencing, there are none of the unfair surprise considerations that motivated the enactment of Rule 32(b). Nevertheless, if a court is contemplating a departure, it should continue to give notice as it did before Booker, and courts should be careful to articulate whether a sentence is a departure or a variance from an advisory guideline range. U.S. v. Vampire Nation, 451 F.3d 189 (3d Cir. 2006).
3rd Circuit says defendant is not entitled to advance notice that court had doubts about defendant’s truthfulness. (761) Defendant complained that the district court improperly limited her substantial assistance departure based on the sentencing judge’s doubts about her credibility. The Third Circuit concluded that the district court could properly consider its reservations about defendant’s truthfulness in determining the extent of its departure. Moreover, defendant’s lack of notice that the departure would be affected by the court’s doubts as to the truthfulness of her testimony was not grounds for reversal. Nothing in the guidelines purports to require the judge to disclose in advance such matters as his appraisal of the undisputed material in the PSR or impressions created by the defendant during trial. “Indeed, such announcement of the judge’s tentative feeling about factors bearing on appropriate punishment might undermine the efficacy of the sentencing hearing.” U.S. v. Carey, 382 F.3d 387 (3d Cir. 2004).
3rd Circuit holds that sentencing court’s failure to provide notice of upward departure was not harmless. (761) Defendant purchased a condominium using two counterfeit cashier’s checks totaling $195,000. The PSR did not identify any ground for upward departure and the government never requested one. The Third Circuit held that the district court erred as a matter of law in making an upward departure sua sponte without providing notice before departing. See Burns v. U.S., 501 U.S. 129 (1991). The government did not prove that the error was harmless. Its bare assertion that defendant would have done nothing differently had notice been given was convincingly refuted by defense counsel’s detailed explanations as to what, in fact, would have been done differently had notice been given. U.S. v. Himler, 355 F.3d 735 (3d Cir. 2004).
3rd Circuit says defendants should be given notice when extrinsic evidence is used at sentencing, but no plain error here. (761) Recently, in U.S. v. Reynoso, 254 F.3d 467, 470 (3d Cir. 2001), the Third Circuit held that notice should be given to defendants when extrinsic evidence is used at sentencing. In this case, the defendants argued that the district court considered evidence from their co-conspirator’s trial in determining their sentences without providing notice. The Third Circuit held that this was error, but defendants failed to show that it affected their substantial rights. When questioned at oral argument, defendants were unable to point to any specific objectionable evidence that was not already part of their presentence investigation report. Moreover they made no showing that even if they had been able to rebut certain evidence, it would have resulted in a lower sentence. Therefore they demonstrated no prejudice, and no plain error. U.S. v. Hart, 273 F.3d 363 (3d Cir. 2001).
3rd Circuit holds that court must give notice of intent to rely on evidence from another proceeding. (761) Without giving notice, the district court sentenced defendant based in part on information that it learned during an earlier criminal trial in which defendant was not involved. The information was not contained either in defendant’s PSR or the government’s sentencing memorandum, nor was it brought out through defendant’s testimony at sentencing. The Third Circuit held that before a sentencing court may rely on testimonial or other evidence from an earlier proceeding, it must afford fair notice to both defense counsel and the government that it plans to do so. The court must identify the specific evidence upon which it expects to rely and the purposes for which it intends to consider the evidence, and the notice must be provided sufficiently in advance so as to ensure that counsel for both sides have a realistic opportunity to obtain and review the relevant transcripts and to prepare a response to it. Because the district court here did not take these steps, it erred in sentencing defendant. However, defendant did not show that the error affected his substantial rights. The question was not whether defendant’s sentence would have been different had the court not considered the additional evidence; instead, defendant had to show that the court would have imposed a lesser sentence had defense counsel been given the required notice. Defendant failed to point out any way in which his lawyer could have rebutted or responded to the evidence from the prior proceeding. U.S. v. Reynoso, 254 F.3d 467 (3d Cir. 2001).
3rd Circuit holds that defense was entitled to advance notice of documents to be relied on at sentencing. (761) Defendant’s federal PSR outlined defendant’s criminal history, and provided limited information about his juvenile record. At sentencing, using a state PSR previously prepared in another case, the court outlined every contact defendant had with the criminal justice system since the age of 10, including his history of dismissed juvenile offenses. Based on defendant’s overall history of “violent acts and patent recidivism,” the court then imposed a sentence at the top of the applicable guideline range. The Third Circuit held that the district court violated Rule 32(c)(1) by failing to disclose the state PSR to defendant and the government within a sufficient time prior to sentencing, and did not provide counsel with an opportunity to comment on the contents of the documents prior to pronouncing sentence. However, the error did not affect defendant’s substantial rights so as to warrant plain error relief. Defendant bore the burden of persuasion on the issue of prejudice under Rule 52(b) because he failed to object at sentencing to the Rule 32(c)(1) violation. The state PSR merely supplemented the information in the federal PSR. The information in the federal report alone was sufficient to warrant to harshest sentence available under the guidelines. U.S. v. Nappi, 243 F.3d 758 (3d Cir. 2001).
3rd Circuit holds that defendant received adequate notice of intent to seek ACCA sentence. (761) The district court sentenced defendant pursuant to the enhanced penalties under the Armed Career Criminal Act of 1984 (ACCA), 18 U.S.C. § 924(e)(1). He argued that his due process rights were violated because he did not received formal, pretrial notice of the government’s intent to seek an enhanced sentence. The Third Circuit held that due process does not require that a defendant receive formal, pretrial notice of the government’s intent to seek an ACCA sentence. Every circuit to have addressed this issue has reached the same conclusion. See, e.g., U.S. v. O’Neal, 180 F.3d 115 (4th Cir. 1999); U.S. v. Bates, 77 F.3d 1101 (8th Cir. 1996). The notice defendant received here was constitutionally adequate. First, the government provided him with actual notice prior to trial, including certified copies of the relevant, prior convictions. Second, months before sentencing, defendant received the PSR, which stated that defendant was subject to sentencing under the ACCA and specified the convictions that qualified him. Third, the government filed an additional notice ten days before sentencing formally notifying defendant that he could be sentenced as an armed career criminal. Thus, defendant had ample opportunity to contest the earlier convictions and their applicability to his sentence. U.S. v. Mack, 229 F.3d 226 (3d Cir. 2000).
3rd Circuit holds that PSR provided adequate notice of extreme conduct departure. (761) Defendant and an accomplice accosted a man and a woman, robbed them, separated them, and then took turns repeatedly raping the woman. Under the heading “Factors That May Warrant Departure,” the PSR stated: “According to U.S.S.G. § 2A3.1, Application Note 5, “If a victim was sexually abused by more than one participant, an upward departure may be warranted, See § 5K2.8 (Extreme Conduct).” The district court departed upward under § 5K2.8 because, among other things, defendant ordered the two victims to have sex with each other. The Third Circuit held that the PSR gave the required notice that a departure could be warranted and that it could be on the basis of extreme conduct. Although another paragraph of the agreement stated that “information in this section does not necessarily constitute a recommendation for a departure,” this did not negate the notice provided by the other paragraph. Defendant had notice of the factual basis for the departure. The PSR detailed numerous facts about the attack, including multiple rapes, forced oral sex, two victims, repeated death threats, and multiple attackers. The court focused on the “unusually degrading” order to the two victims to have sex in the presence of the criminals when it stated that it was departing upward based on the extreme conduct. This could not have been a surprise to defendant, since this aspect of his conduct featured prominently in the PSR’s discussion of his offense. U.S. v. Queensborough, 227 F.3d 149 (3d Cir. 2000).
3rd Circuit says loss from stealing cultural objects did not adequately reflect harm. (761) Defendants stole various cultural objects from a historical museum. Finding defendants’ sentencing range of 27 to 33 months did not sufficient capture the egregiousness of the offenses, the district court departed upward by four levels. The Third Circuit remanded because the district court departed without providing advance notice to defendants of its intention to depart upward, as required by Burns v. United States, 501 U.S. 129 (1991). However, the court agreed that a departure was warranted. The price of the stolen artifacts as set by the commercial market was insufficient to “fully capture the harmfulness of the [defendants’] conduct.” The stolen antiques had historical and cultural importance. Moreover, the thefts affected the museum by damaging its reputation. Finally, the monetary value of the objects did not adequately take into consideration the real but intangible harm inflicted upon all of the other victims of the offense, including the City of Philadelphia and the general public. U.S. v. Medford, 194 F.3d 419 (3d Cir. 1999).
3rd Circuit says sentencing hearing not tainted by allegations raised in co-defendant’s sentencing hearing. (761) Defendant argued that his sentencing hearing was improperly tainted by allegations raised without notice to him or the opportunity to respond. A half-hour before his sentencing hearing, his co-defendant was sentenced in a separate proceeding. During that hearing, the co-defendant claimed that defendant had threatened the co-defendant. The Third Circuit rejected defendant’s argument, finding nothing in the record of defendant’s hearing to suggest that the court relied on the statements proffered during the co-defendant’s sentencing hearing. Experienced district judges are able to avoid the influence of inappropriate, irrelevant, or extraneous information. Judge Nygaard concurred, believing that the appellate court lacked jurisdiction to review defendant’s argument. U.S. v. Graham, 72 F.3d 352 (3d Cir. 1995).
3rd Circuit says government need not file section 851 notice of intent to seek career offender status. (761) Defendant alleged that the district court erred in sentencing him as a career offender because the government failed to give him notice of his career offender status before trial under 21 U.S.C. section 851(a)(1). The 3rd Circuit rejected this claim, holding that section 851(a)(1) does not require the government to file notice in order to sentence a defendant as a career offender. Section 851(a)(1) requires the government to file a pretrial information only if it intends to seek a sentence beyond the maximum provided by the statute. U.S. v. Day, 969 F.2d 39 (3rd Cir. 1992).
4th Circuit holds failure to give advance notice of upward variance did not affect substantial rights. (761) Defendant, an assistant superintendent of schools for the State of West Virginia, used his position to influence the Department of Education bidding process. Although his advisory guideline range was 51 to 63 months, the district court imposed an 84-month sentence. Defendant argued, for the first time on appeal, that the court failed to give him advance notice that it was considering an upward variance. The Fourth Circuit held that the failure to give defendant notice of the upward variance did not affect defendant’s substantial rights, and therefore it did not rise to the level of plain error. Defendant had a meaningful opportunity to make a statement in his own behalf and to argue his mitigation case to the court at length. He presented arguments to the court regarding all relevant sentencing factors under § 3553(a), and his presentencing memo fully discussed all § 3553(a) factors related to his sentencing. The court had all this information before it when it imposed the variance, and defendant provided nothing new that might have persuaded the court to impose a shorter sentence. The 84-month sentence was reasonable. Among the reasons cited by the court were the duty defendant owed to the citizens of his state, that defendant created and exploited a position of trust, and his conduct affected the state’s most vulnerable. The court read defendant’s letter and found his explanation “incredible.” U.S. v. McClung, 483 F.3d 273 (4th Cir. 2007).
4th Circuit holds downward variance without notice to government was plain error. (761) Defendant, a podiatrist, was convicted of fraud in connection with his billing of his patients’ health insurers. Although both parties agreed in defendant’s plea agreement to a sentence of 24 months, the district court sentenced defendant to 12 months, despite having failed to notify the parties in advance of a possible downward variance. The prosecution noted its objection to the variance, claiming it was inconsistent with § 3553(a). However, the prosecution did not object to the court’s failure to give notice of its intent to make the variance. Reviewing for plain error, the Fourth Circuit held that the district court plainly erred in failing to give the government advance notice of its intent to impose a downward variance. Although some circuits have held that variances are outside the scope of the notice requirement in Burns and Rule 32(h), the Fourth Circuit requires such notice. Neither the PSR nor defendant’s sentencing memo suggested that there existed a proper basis for a variance or departure; therefore, the court was obligated, under Rule 32, to notify the parties of its intent to vary downward from defendant’s advisory guideline range. The fact that most of the factors that the court cited were mentioned in either the PSR or the sentencing memo did not matter – they were not mentioned as possible grounds for a variance or a departure. U.S. v. Blatstein, 482 F.3d 725 (4th Cir. 2007).
4th Circuit holds that defendant did not have adequate notice of departure despite mention in PSR. (761) Defendant argued that the district court erred in departing upward from criminal history category IV to V without giving prior notice of its intent to do so. Although the PSR noted that a departure to a higher criminal history category might be considered at sentencing, the Fourth Circuit nonetheless found that the notice was inadequate. The PSR informed counsel that they needed to prepare arguments on this issue, but not that they needed to present them. Although defendant could have offered his arguments preemptively, it was understandable why his attorney would not want to call attention to the possibility of an upward departure. By the time the parties received notice that an upward departure was under consideration, the court had already made a final ruling on the issue. The court did not solicit arguments from counsel before announcing this ruling. The error constituted plain error, therefore it was unnecessary to determine whether defendant preserved his objection. The error affected defendant’s substantial rights because it resulted in an increased sentence. The error should be noticed and corrected because it impaired defendant’s opportunity to be heard on an important matter affecting his sentence. Judge Widener dissented. U.S. v. Spring, 305 F.3d 276 (4th Cir. 2002).
4th Circuit rules defendant had adequate notice of departure even though PSR discussed different guideline. (761) Defendant was convicted of possessing a firearm in a school zone and being a felon in possession of a firearm. The PSR suggesting departing upward under Note 4 to § 2K2.5, which authorizes a departure from the guideline applicable to school zone offenses in certain circumstances where the firearm was brandished in a school zone. The district court, however, relied on its general departure authority under § 5K2.0 to depart from the felon-in-possession guideline based on defendant’s brandishing of the gun. The Fourth Circuit held that defendant had adequate notice of the grounds on which the district court departed. See Burns v. U.S., 501 U.S. 129 (1991). Defendant clearly had notice of the facts upon which the court based its departure. The PSR specifically identified defendant’s brandishing of the pistol as a factor potentially warranting an upward departure. Defendant also had sufficient notice of the legal justification for the court’s ruling. “Upon being informed in the PSR and by the Government that, pursuant to Application Note 4 of § 2K2.5, ‘an upward departure may be warranted’ for his having brandished a firearm, [defendant] should have been prepared to argue not only the discrete defense that the Note was inapplicable in his case, but also that – as a general matter and notwithstanding its treatment in other sections of the Guidelines – the brandishing in no way rendered his case exceptional.” Judge Michael disagreed that defendant had sufficient legal notice, but found that the plain error did not affect defendant’s substantial rights. U.S. v. Bellamy, 264 F.3d 448 (4th Cir. 2001).
4th Circuit holds that PSR gave defendant adequate notice of predicate ACCA conviction. (761) Defendant was sentenced as an armed career criminal under 18 U.S.C. § 924(e) based in part on a 1977 North Carolina conviction. Defendant argued that the conviction should not count because the government did not include it in the notice that it filed of its intent to seek an enhanced sentence. The Fourth Circuit found that the PSR gave defendant adequate notice that the 1977 conviction was a possible predicate conviction. There is no requirement that the government list, either in the indictment or in some formal notice, the predicate convictions on which it will rely for a § 924(e) enhancement. Although a defendant does have a right to adequate notice of the government’s plan to seek such an enhancement, the listing of those convictions in the PSR is more than adequate to provide such notice. The PSR explicitly relied on the 1977 conviction as a possible predicate ACCA conviction, and also gave a full description of the offense. Defendant had every reason to object to its use, and in fact did so, both in his written objections to the PSR and at sentencing. U.S. v. O’Neal, 180 F.3d 115 (4th Cir. 1999).
4th Circuit remands to allow parties to address court’s sua sponte departure for family ties. 761) The district court made a sua sponte decision to depart downward for extraordinary family ties under § 5H1.6. Defendant related well to his severely mentally retarded sister, provided invaluable care for her and her mother, and was crucial to the structure and stability of the family. The Fourth Circuit found that these circumstances were not extraordinary in light of Circuit precedent, but remanded to allow defendant and the government to further develop the record on this possible ground for departure. A district court should depart from the guidelines only after both the government and the defendant have received proper notice. U.S. v. Maddox, 48 F.3d 791 (4th Cir. 1995).
4th Circuit rules that tentative findings by court were not required. (761) Defendant argued that the district court erred in failing to provide the parties with notice of its intended findings. The 4th Circuit held that the failure to issue tentative findings was not reversible error. The guidelines do not require tentative findings in all cases. Here, an addendum to the PSR set forth both the government’s and defendant’s objections to the PSR, as well as their responses. Both sides were able to argue their positions at the sentencing hearing. The district court properly addressed and resolved each disputed issue at the hearing. U.S. v. Francisco, 35 F.3d 116 (4th Cir. 1994).
4th Circuit rules that sentencing judge in pre-guidelines case may take a defendant’s perjury into account. (761) In a pre-guidelines case, the 4th Circuit rejected defendant’s contention that a sentencing court may not take into account a defendant’s perjury unless the defendant is provided with both advance notice of the judge’s intention to consider such conduct and an opportunity to rebut the judge’s determination that perjury was committed. Moreover, it is permissible for a sentencing judge to infer from the testimony and demeanor of the witnesses at trial that the defendant coerced or allowed a defense witness to commit perjury. U.S. v. Pavlico, 961 F.2d 440 (4th Cir. 1992).
4th Circuit finds that government’s position at sentencing did not unfairly surprise defendant. (761) The government had originally filed an objection to the presentence report because it believed that defendant should be classed as a career offender. After discussing the matter with the probation department, the government realized that defendant fell short of career offender status and withdrew the objection. At the sentencing hearing the government argued that defendant should receive a two level increase in his offense level pursuant to guidelines § 4A1.1(d) because he had committed the instant offense while on probation. This objection was not included in the original objection to the presentence report because of the government’s belief that defendant should be sentenced as a career offender. The 4th Circuit rejected defendant’s argument that he was unfairly surprised and denied the opportunity to respond to the government’s position. The presentence report stated that defendant was on parole at the time he committed the offense. U.S. v. Jones, 913 F.2d 174 (4th Cir. 1990).
4th Circuit holds that failure to make tentative findings was not reversible error. (761) The District Court gave the defendants no notice of its tentative findings before the sentencing hearing. However, the court provided an opportunity for defense counsel to raise objections before imposition of sentence. Neither defendant offered evidence to support their challenges to the pre-sentence report and their objections were denied. The 4th Circuit affirmed, holding that the failure to make tentative findings was not reversible error. Although it is a “better practice’ to make tentative findings, they are not required by the guidelines in all cases. The District Court substantially complied with the guidelines by receiving defendants’ objections in advance of the hearing, allowing the parties to address the objections at the hearing and resolving the disputed factors in accordance with Rule 32(a)(1), Fed. R. Crim. P. U.S. v. Walker, 889 F.2d 1317 (4th Cir. 1990).
5th Circuit says failure to notify defendant before departing upward did not affect substantial rights. (761) Defendant pled guilty to illegal reentry of a deported alien, resulting in an advisory guideline range of zero to six months. The PSR recommended a six-month sentence, and did not identify any factors warranting a departure. At sentencing, the district court departed upward to 12 months, without prior notice, based on defendant’s five previous immigration encounters and four prior removals. Defendant objected for the first time on appeal to the lack of notice, which is required by Fed. R. Crim. Proc. 32(h). The Fifth Circuit found no plain error, ruling that the failure to give defendant the required notice did not affect his substantial rights. Since defendant did not dispute the accuracy of his immigration encounters and prior removals, he did not show a reasonable probability that the district court would have imposed a lesser sentence if it had given him notice of its intent to depart from the guidelines. U.S. v. Zelaya-Rosales, 707 F.3d 542 (5th Cir. 2013).
5th Circuit rules that sentencing court is not required to give notice of intent to impose non-guideline sentence. (761) Although nothing in the government’s submissions or the PSR mentioned any grounds for sentencing departures or variances, the district court, without providing pre-sentencing notice of its intent to do so, imposed a non-guideline sentence greater than the advisory guideline range. Noting the circuit split in this area, the Fifth Circuit concluded that Burns v.U.S, 501 U.S. 129 (1991), and the plain language of Rule 32(h) do not apply to post-Booker sentences at variance with the guidelines. Thus, it held that post-Booker, a sentencing court need not provide presentencing notice of its sua sponte intention to impose a non-guideline sentence. The plain language of Rule 32(h) limits its application to departures. It contains no language hinting that it might apply elsewhere. Moreover, since Booker has made the guidelines purely advisory, the concerns that precipitated the Court’s decision in Burns were no longer viable. The § 3553(a) factors that a court must consider are known (or knowable) by the parties prior to sentencing, thus putting the litigants on notice that sentencing court has discretion to consider any of these factors. This knowledge eliminates the element of unfair surprise, the concern that defense counsel will waste time with a presentencing filing, the possibility that defense counsel will unwittingly provide the court with a grounds for departure, and the worry of possibly undermining the adversarial process. U.S. v. Mejia-Huerta, 480 F.3d 713 (5th Cir. 2007).
5th Circuit holds that defendant was not entitled to formal notice of enhanced sentence under ACCA. (761) Defendant argued that the government incorrectly failed to give notice that it intended to seek an enhanced sentence under the Armed Career Criminal Act, 18 U.S.C. §924(e) and U.S.S.G. §4B1.4. However, defendant was not entitled to any formal notice of the possibility of an enhanced sentence under the ACCA other than that required by due process. Defendant received notice of the government’s intent to seek an enhanced sentence under the ACCA through the presentence report, to which he objected in writing and at sentencing. The Fifth Circuit rejected defendant’s claim that he received inadequate notice. U.S. v. Howard, 444 F.3d 326 (5th Cir. 2006).
5th Circuit holds that court did not give adequate notice of specific grounds for upward departure. (761) The district court gave defendant adequate notice that it was contemplating an upward departure. Despite the fact that neither the PSR nor the government requested an upward departure, the court continued the case for 30 days, telling defendant that it planned to depart upwardly to the maximum possible sentence for the offenses charged. The court also gave adequate notice of several of the specific grounds it relied on. Although these grounds were mentioned merely as concerns alongside the order continuing the case, rather than as grounds for a departure, they were sufficient to allow defendant to reasonably prepare a meaningful response. However, the court failed to give adequate notice of several other factors it ultimately used in calculating an upward departure. No mention was made at the initial hearing that the court was concerned about the physical disparities between defendant and the victim until defendant was actually sentenced, and did not reference the absence of other punishment consequences that were normally applicable to other fraud defendants. The court’s general discussion of “victim-related” and “offense-related” factors was not sufficiently specific to qualify as notice. The Fifth Circuit remanded for resentencing. U.S. v. Andrews, 390 F.3d 840 (5th Cir. 2004).
5th Circuit says court need not provide notice of departure where the opposing party has moved for it. (761) Defendant charged that the lower court erred in failing to notify him of its intent to depart upward. The Fifth Circuit found this argument baseless, since the court is not required to provide notice of the possibility of departure where the opposing party has so moved. Rule 32 requires that the court give such notice only before departing on a ground not identified as a ground for departure either in the PSR or in a prehearing submission by the government. Since the government moved for a departure two days before sentencing, such notice from the court was not necessary. U.S. v. Froman, 355 F.3d 882 (5th Cir. 2004).
5th Circuit holds that PSR gave adequate notice of upward departure. (761) Defendant argued that the district court failed to notify him of its intent to depart upward, in violation of Rule 32 and Burns v. U.S., 501 U.S. 129 (1991). The Fifth Circuit held that the PSR satisfied the notice requirements of Rule 32. The PSR clearly stated that the court “may want to consider an upward departure,” and each of the court’s grounds for departure were reflected in the report. First, the court stated that an upward departure was “more than appropriate” because defendant deliberately targeted numerous elderly and vulnerable victims. These reasons were expressly set forth in the PSR, which recommended an upward departure because defendant’s offense “involved the targeting of a large number of vulnerable victims.” Next the court found that “the amount of dollar loss does not even begin to address the losses and the suffering of the victims in the case and their mental and their emotional strain.” This factor was also noted in the PSR, which stated than upward departure may be warranted when the financial loss “underestimates the harm” due to “several emotional trauma.” Finally, the court found that defendant deserved an increased sentence for “continuing to prey on numerous elderly victims” despite an injunction against his company. The court’s reasoning paralleled the probation officer’s detailed discussion of U.S. v. Smith, 133 F.3d 737 (10th Cir. 1997), a case that affirmed an upward departure for “particularly predatory” criminal conduct. U.S. v. Davenport, 286 F.3d 217 (5th Cir. 2002).
5th Circuit says defendant entitled to PSR addendum prior to court’s consideration of § 3553 motion. (761) In 1989, defendant was sentenced to 20 years based on 8.5 gallons of an acetone mixture that contained a small amount of methamphetamine. Years later, defendant moved to modify his sentence based on a 1993 amendment that excludes from guideline calculations the weight of any waste products contained in a methamphetamine mixture. The probation office prepared an addendum to the original PSR using the 1994 edition of the guidelines. Defendant was never given a copy of the addendum to review. Without a hearing, the district court denied defendant’s motion. The Fifth Circuit held that defendant was entitled to notice of the contents of the addendum so that he could have the opportunity to respond to it or contest it. The court’s failure to disclose the addendum to defendant was not harmless. In the case of a retroactively applied guideline amendment, § 1B1.10(b) directs a court to consider the sentence it would have imposed had the amendment been in effect at the time the defendant was sentenced. The addendum to the PSR improperly used the 1994 edition of the guidelines, resulting in a guideline range that was considerably longer than the same calculation using the 1988 edition. U.S. v. Mueller, 168 F.3d 186 (5th Cir. 1999).
5th Circuit holds defendant could not prove prejudice from failure to receive notice of departure. (761) Defendant stole Social Security checks from the mail and cashed them. He argued for the first time on appeal that the district court did not give him adequate notice of its intent to depart based on the egregiousness of his conduct. The Fifth Circuit held that defendant could not prove prejudice from his failure to receive proper notice. Even assuming plain error, an appellate court will reverse only if the error affects the substantial rights of the defendant or seriously affects the fairness, integrity or public reputation of judicial proceedings. Defendant asserted only that if he had known the judge would view theft of a Social Security check as egregious, he could have directed the judge to the vulnerable victim enhancement. However, the judge would have had the discretion to depart from the guidelines even if the vulnerable victim enhancement applied. U.S. v. Nevels, 160 F.3d 226 (5th Cir. 1998).
5th Circuit requires notice to government before sua sponte downward departure. (761) Defendant was convicted of bribing a public official. At sentencing, the court announced for the first time that it was departing downward based on the “peculiar” facts of the case. The Fifth Circuit held that under Rule 32 and Burns v. U.S., 501 U.S. 129 (1991), the government was entitled to receive prior notice of the court’s intent to sua sponte depart downward. Rule 32 requires that before a district court departs upward, the defendant must have notice, either in the PSR or in a pre-hearing submission by the government, or from the court. At least four other circuits have held that the rule applies to downward departures. No circuit has held to the contrary. The government is due the same notice as is the defendant. U.S. v. Pankhurst, 118 F.3d 345 (5th Cir. 1997).
5th Circuit finds adequate notice where defendant knew facts on which increase was based. (761) Defendant argued that he did not have adequate notice of the district court’s intent to enhance his sentence for obstruction of justice. The Fifth Circuit found adequate notice because defendant had actual knowledge of the facts upon which the court based its enhancement. Where a defendant has actual knowledge of the facts on which an enhancement or denial of a reduction is based, the sentencing guidelines themselves provide sufficient notice to satisfy the requirements of Rule 32 and guideline § 6A1.3. U.S. v. Marmolejo, 89 F.3d 1185 (5th Cir. 1996).
5th Circuit rules defendant had inadequate notice of intent to depart upward for perjury. (761) The district court departed upward in sentencing based on its belief that defendant perjured himself at trial. Defendant argued, and the Fifth Circuit agreed, that the court failed to give him adequate notice of its intent to depart upward on this ground. Perjury was not mentioned in the PSR as a ground for upward departure and it was clear from the transcript of the sentencing hearing that defendant’s attorney did not have notice of this ground nor was he prepared to comment on it. U.S. v. Marmolejo, 86 F.3d 404 (5th Cir. 1996).
5th Circuit says defendant’s knowledge was sufficient notice of enhancement or denial of reduction. (761) Defendant escaped from a federal prison. The PSR recommended that defendant be given an acceptance of responsibility reduction and that he receive no enhancements. Before sentencing, without his attorney’s knowledge, defendant sent a letter to the judge claiming he had escaped to visit his sick, dying mother. In fact, defendant had not visited his mother. On the basis of this letter, the district judge denied the § 3E1.1 reduction and imposed an obstruction of justice enhancement. Defendant argued that he was entitled to advance notice of the court’s intent to use his letter as a basis for rejecting the PSR’s recommendations. The Fifth Circuit disagreed, holding that a defendant’s actual knowledge of the facts on which the district court bases an enhancement or denial of a reduction is sufficient notice to satisfy Rule 32 and § 6A1.3. Actual notice of all grounds for an enhancement or reduction is unnecessary. The district court must have flexibility to deal with factors not covered in the PSR or arising after its writing. U.S. v. Knight, 76 F.3d 86 (5th Cir. 1996).
5th Circuit finds defendant received adequate notice of court’s intent to depart upward. (761) Defendant argued that he did not receive adequate notice of the district court’s intention to depart upward. The Fifth Circuit disagreed. The night before the original sentencing hearing, the district court faxed to all the parties a notice of its intention to consider an upward departure. At the sentencing hearing the next day, the court explained the grounds it was considering. At defendant’s request, the sentencing hearing was then rescheduled for six days later. The court provided defendant with reasonable notice of its intent to depart upward and the grounds for such a departure. U.S. v. Clements, 73 F.3d 1330 (5th Cir. 1996).
5th Circuit holds that PSR and government motion gave Burns notice of grounds for departure. (761) Defendant pled guilty to various carjacking offenses. A Fifth Circuit panel approved an upward departure based on the cruel and degrading circumstances surrounding the death of the victim, U.S. v. Singleton, 49 F.3d 129 (5th Cir. 1995). In a petition for rehearing, defendant contended that, contrary to the assertion in the panel opinion, he never had access to the probation officer’s departure recommendation. The 5th Circuit denied rehearing, finding that the PSR and the government’s motion for an upward departure gave defendant sufficient notice of the possible grounds for departure. Both the report and the motion identified the grounds for departure upon which the district court relied. U.S. v. Singleton, 49 F.3d 129 (5th Cir. 1995) (on denial of rehearing).
5th Circuit reverses for insufficient notice of basis for upward departure on fines. (761) The district court departed upward in imposing a $50,000 fine on each defendant. The court stated that the basis for the departure was that defendants preyed on the weak and uneducated. The 5th Circuit reversed, holding that the district court failed to give defendants reasonable notice of the basis for the upward departure. Although the court told counsel that it had earlier given notice that it was considering an upward departure, the notice was not memorialized in the record, so it was impossible to tell if the proposed basis for departure was included in that notice. U.S. v. Moore, 37 F.3d 169 (5th Cir. 1994).
5th Circuit rules amended presentence report gave sufficient notice of upward departure. (761) Defendant’s original presentence report detailed the large loss caused by defendant’s fraud, but did not make a recommendation for departure. An amended presentence report, filed 30 days later, recommended a departure based an the large amount of loss. Defendant was sentenced a week later. The 5th Circuit rejected defendant’s contention that he did not receive sufficient notice of the district court’s intention to depart upward. The amended presentence report put him on notice that departure was recommended. The timing of the notice was reasonable. The fact that defendant was not given more time following express notification of the contemplated departure was irrelevant because defendant, his counsel and his guidelines expert “surely recognized the significance of the disputed amount and had ample opportunity to present rebuttal evidence. U.S. v. Bachynsky, 949 F.2d 722 (5th Cir. 1991).
5th Circuit rejects due process claim based upon late receipt of affidavit supporting loss calculation. (761) The presentence report calculated the loss at $37 million. Three days prior to sentencing, defendant submitted an objection to the presentence report contending that the loss was only $41,900. The prosecution responded by filing, less than 24 hours before the sentencing hearing, an affidavit from an FBI agent which explained in detail the government’s calculation. The 5th Circuit rejected defendant’s due process claim based upon his late receipt of the affidavit. The only reason the government’s submission was at the “11th hour” was because defendant failed to submit his objections to the presentence report in a timely fashion. Defendant’s attorney had the original presentence report for approximately five weeks prior to the sentencing hearing, and failed to respond until three days prior to sentencing. U.S. v. Bachynsky, 949 F.2d 722 (5th Cir. 1991).
5th Circuit affirms that court may consider relevant conduct detailed in factual portion of presentence report. (761) Defendant contended that he was not given adequate notice of the relevant conduct for which he was held accountable, as the description of some of his conspiracy activity appeared in the factual portion of his presentence report, rather than in the section entitled “Relevant Conduct.” The 5th Circuit rejected this contention, holding it is permissible for a sentencing court to consider relevant conduct detailed in the factual portion of a defendant’s presentence report. The right to notice of relevant conduct does not require that the notice appear in the relevant conduct section, or even the main body, of the presentence report. U.S. v. Thomas, 932 F.2d 1085 (5th Cir. 1991).
6th Circuit holds defendant failed to show prejudice from lack of notice of variance. (761) Defendant pled guilty to wire fraud relating to a fraudulent investment scheme, in which he converted for his own purposes over three million dollars invested with him by approximately 25 clients. Although his guideline range was 63-78 months, the district court sentenced defendant to 108 months in prison. Defendant contended that his sentence was procedurally unreasonable because it was imposed in violation of the notice requirement of Local Criminal Rule 32.1(e), which requires the sentencing judge to notify the parties if it intends to consider a sentence outside the applicable guideline range on a ground not identified either in the PSR or a pre-hearing submission. The Sixth Circuit rejected the claim. Defendant did not invoke Local Rule 32.1(e) in the district court or request the court to reset the hearing once it became clear that the district court intended to vary upward. Despite having several opportunities to object at the sentencing hearing, defendant raised this claim for the first time on appeal. Defendant was not entitled to relief under the plain-error standard because he did not show that he was prejudiced by the lack of notice. Prior to sentencing, defendant had notice of the facts relied on by the district court. Defendant did not point to any relevant issue that he did not anticipate or have the opportunity to address at the sentencing hearing. U.S. v. Brinley, 684 F.3d 629 (6th Cir. 2012).
6th Circuit says no notice was required where court varied, rather than departed, from guidelines. (761) Defendant argued that the district court erred by departing upward without giving him advance notice. The Sixth Circuit ruled that the district court’s deviation from the Sentencing Guidelines was a variance, not a departure, and thus did not require advance notice to defendant. Under Irizarry v. U.S., 553 U.S. 709 (2008), Rule 32(h)’s notice provision does not apply when the district court chooses to apply a variance from the Guidelines range based on the sentencing factors of 18 U.S.C. § 3553(a). Here, although the court repeatedly used the word “departure” during sentencing, there are “no specific magic words” necessary to render a sentence reasonable. The court clarified its use of the word “departure” while still at sentencing, noting that its decision was “not a departure under the guidelines.” The court’s central reason for deviating from the Guidelines was that it considered the “seriousness of the offense [to be] not properly reflected in the guideline calculation.” The seriousness of the offense is explicitly a § 3553(a) factor to be considered. U.S. v. Denny, 653 F.3d 6 (6th Cir. 2011).
6th Circuit reverses where defendant had no opportunity to address upward variance. (761) Defendant pled guilty to unlawful re-entry by an alien deported after an aggravated felony conviction. The government asked for a sentence within the guideline range of 30-37 months, while defendant requested a 24-month sentence. Nevertheless, the court sentenced defendant to 96 months, explaining that the significant variance was necessary because defendant had committed a very serious offense, continued to violate the law, and was not supporting his four children. Given the unique circumstances of the case, the Sixth Circuit held that the sentence was procedurally unreasonable because the court failed to provide defendant with a meaningful opportunity to address the court’s upward variance. Defendant entered the sentencing hearing believing that he should be arguing against a 30-37-month sentence. Defendant was not aware that the court was contemplating a significantly higher sentence and thus had no chance to argue against such a variance before the court announced its sentence. U.S. v. Garcia-Robles, 562 F.3d 763 (6th Cir. 2009).
6th Circuit holds that failure to provide notice of variance from Guidelines was plain error. (761) Defendant’s PSR calculated his guideline range as 18-24 months, and found no reason for any departure. The district court sentenced him to 42 months. Defendant did not object to the upward variance at the sentencing. The 6th Circuit held that the district court’s failure to provide notice of the variance was plain error. In U.S. v. Cousins, 469 F.3d 572 (6th Cir. 2006), overruling recognized by U.S. v. Grams, 566 F.3d 683 (6th Cir. 2009), the court held that Rule 32(h) applies to all sentences that deviate from the Guidelines. Cousins was controlling here. No notice of an intent to depart was present in the submission of the parties or the presentence report. The judge departed upward to allow sufficient time for defendant to take part in a rehabilitation program, but with advance notice, defendant could have presented evidence that 42 months was greater than required to meet that end. Evidence supporting the departure was not overwhelming, since defendant argued that rehabilitation programs requiring fewer than 42 months were available to him. U.S. v. Alexander, 517 F.3d 887 (6th Cir. 2008).
6th Circuit holds defendant had sufficient notice of possibility of lifetime term of supervised release. (761) Defendant was convicted of child pornography offenses. The district court sentenced defendant to a lifetime term of supervised release pursuant to the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003 (the PROTECT Act). Defendant argued that the sentence should be reversed because the district court did not provide adequate notice of its intent to exceed the supervised release guideline range. The grounds for the variance was that defendant was convicted of a sexual offense against minors under § 2252A; therefore, he was eligible for lifetime supervised release pursuant to § 3583(k). The plea agreement that defendant signed stated that he was pleading guilty to an offense under § 2252A. The agreement also clearly stated the effect of that ground for a variance. It provided that “a violation of § 2252A(a)(2)(A)” exposes defendant to “supervised release for any term up to life.” The PSR states that “the court may impose a term of supervised release up to life” for the § 2252A violation, and explains in some detail defendant’s molestation of a 15-year-old. Thus, the PSR and both parties’ “prehearing submission” both “identified” the ground for the upward variance, and gave the parties reasonable notice that the district court might depart. U.S. v. Presto, 498 F.3d 415 (6th Cir. 2007).
6th Circuit upholds decision to permit the government to proceed on new theory of relevant conduct. (761) In its first sentencing memo, the government attributed $211,193.99 in losses to defendant, which included over $100,000 in losses caused by defendant’s brother and sister. After the court expressed concern about using the losses caused by defendant’s siblings, the government abandoned this position, and instead argued that the additional relevant conduct for which defendant should be held responsible involved defendant’s own fraudulent conduct beyond that charged in the indictment. The district court accepted the government’s rationale and found defendant to be responsible for between $200,000 and $350,000 in losses. The Sixth Circuit held that the district court did not act improperly in permitting the government to change theories between sentencing hearings. The rationale on which the amount of losses was calculated was perfectly reasonable, and defendant received notice of this change in position when a copy of the government’s second sentencing memo was sent to him. There was no error in the district court’s decision to permit the government to proceed on its new theory regarding relevant conduct. U.S. v. Reaume, 338 F.3d 577 (6th Cir. 2003).
6th Circuit affirms stolen firearm enhancement. (761) Defendant was convicted of drug and firearms charges. The district court applied a § 2K2.1(b)(4) enhancement for possessing a stolen gun. Defendant argued that the court erred in making a “sua sponte upward departure.” The Sixth Circuit held that the enhancement was not a departure. The district court simply calculated defendant’s sentence under the guidelines. The court’s finding that the gun was stolen was based on an uncontested and corroborated excerpt of the PSR. U.S. v. Jones, 159 F.3d 969 (6th Cir. 1998).
6th Circuit refuses to extend Burns notice requirement to sentencing enhancements. (761) Defendant pled guilty to bankruptcy fraud for concealing his interest in several real properties from the bankruptcy trustee. He argued that the district court erred by failing to provide him with adequate notice of its intent to apply a § 2F1.1(b)(3) enhancement and the factors upon which it relied in determining the amount of loss. Under Burns v. U.S., 501 U.S. 129 (1991), a district court must give parties reasonable notice before it departs based on a ground not identified in the PSR. The Sixth Circuit refused to extend the Burns notice requirement to include either a court’s application of a sentencing enhancement contained the guideline under which a defendant is sentenced, or to a court’s alternative determination of the amount of loss. Burns only requires notice in the narrow situation of departures, it does not require notice of all possible sentencing factors. A district court is always free to accept or disregard a probation officer’s findings in a PSR. U.S. v. Guthrie, 144 F.3d 1006 (6th Cir. 1998).
6th Circuit says lack of notice of departure did not excuse failure to object to departure. (761) The government appealed a downward departure. Defendant argued that the government waived any error by failing to object to the downward departure at sentencing. The government argued that the court failed to give the government proper notice of its intent to depart. The Sixth Circuit held that even if the government did not receive advance notice, this did not excuse its failure to object at sentencing to the merits of the departure. The government not only failed to object when the defendant asked for a downward departure, but also failed to object when the court gave it the opportunity to comment after sentence was imposed. The government’s statement that it concurred in the recommendations contained in the PSR was not a sufficient objection to preserve the sentencing issue for appeal, because it failed to provide the district court with the basis of the government’s disagreement with its departure ruling. U.S. v. Barajas-Nunez, 91 F.3d 826 (6th Cir. 1996).
6th Circuit rules defendants are not entitled to probation officer’s sentencing recommendation. (761) Defendants asserted that the district court improperly allowed confidential presentence information to be submitted by the probation office without allowing him an opportunity to comment. The 6th Circuit reviewed the confidential material and found no impropriety. The information consisted of nothing more than the probation officer’s sentencing recommendations. Under Fed. R. Crim. P. 32(c)(3)(A), such recommendations are not required to be disclosed to the accused. U.S. v. Phibbs, 999 F.2d 1053 (6th Cir. 1993).
6th Circuit declares presentence report timely despite district court’s scheduling order. (761) Defendant was sentenced before a judge who issued an order setting deadlines for the probation office to submit the presentence report and dates for the parties to file objections. Defendant’s presentence report was provided to her in a timely fashion, and neither party objected. The probation office nevertheless revised the report in a way less advantageous to defendant and provided it to the parties again, at a time that would have been too late in the first instance. The 6th Circuit concluded that this did not violate the district court’s order, which did not speak precisely to this scenario. Moreover, the court noted defendant’s failure to show any cognizable harm arising from the alleged violation, as she was permitted a continuance to respond to the changes in the report. U.S. v. Williams, 993 F.2d 1224 (6th Cir. 1993).
6th Circuit says that judge who releases defendant on bond need not notify him of enhancement for crimes committed on bond. (761) Under 18 U.S.C. section 3147, a defendant who commits an additional offense while released on bond is subject to an additional consecutive sentence. To implement this, guideline section 2J1.7 provides for a three level offense level enhancement. Following the 3rd Circuit and rejecting the 4th Circuit, the 6th Circuit held that the judge who initially authorizes a defendant’s release on bond need not give specific notice to the defendant of the additional punishment for committing an offense while on bond. Section 3147 is self-executing and unambiguously mandates that courts impose additional consecutive sentences. Moreover, even if there were a notice requirement, defendant received it. He conceded that the release papers he signed contained the language of section 3147 but not a citation to the statute. U.S. v. Lewis, 991 F.2d 322 (6th Cir. 1993).
7th Circuit remands where court may have denied reduction based on incorrect facts. (761) In denying defendant’s motion for a sentence reduction based on the recent crack amendments, the judge explained that its previously-imposed 137-month sentence was necessary under the facts of this case, and had the guideline amendment been in effect when the original sentence was imposed, it still would have imposed a sentence of 137 months. Two weeks later, the judge amended his explanation to add that defendant’s post-sentencing conduct did not warrant a reduction, noting that prison officials told the court that defendant was recently found guilty in an administrative hearing of performing a lewd act in front of a female corrections officer. The Seventh Circuit vacated and remanded for a new decision. The problem was not the lack of notice, but that the judge may not have his facts straight. Defendant contended that the judge was mistaken, and the record did not contain a copy of defendant’s prison disciplinary record. By withholding the information until the day on which the time for appeal expired, the district court prevented defendant from requesting a hearing or presenting any evidence of his own that would call into question the judge’s understanding of his record. U.S. v. Neal, 611 F.3d 399 (7th Cir. 2010).
7th Circuit holds that defendant is not entitled to notice of court’s intent to vary from advisory guideline range. (761) Defendant, an inmate at a federal penitentiary, pled guilty to stabbing four correctional officers with sharpened metal rods. The district court sentenced him to 240 months’ imprisonment, 30 months longer than the high end of the applicable advisory guideline range. Defendant argued that under Rule 32(h) he was entitled to advance notice before the court imposed a sentence that departed upward from the advisory guideline range. The Seventh Circuit disagreed. Rule 32(h) applies only to “departures’ from the Sentencing Guidelines. After U.S. v. Booker, 543 F.3d 220 (2005), the Seventh Circuit has declared the concept of departures “obsolete’ and “beside the point.” See, e.g. U.S. v. Johnson, 427 F.3d 423 (7th Cir. 2005). Now that Booker has rendered the guidelines advisory, the element of unfair surprise that underlay Burns v. U.S., 501 U.S. 129 (1991) and led to the creation of Rule 32(h) is no longer present. Defendants are on notice post-Booker that sentencing courts have discretion to consider any of the factors specified in § 3553(a). The sentence imposed was reasonable. The factors cited by the district court (the number of victims, the wanton and senseless nature of the violence, the unprovoked nature of the attacks and the psychological harm caused by assaulting prison guards) appropriately related to the nature, circumstances and seriousness of the offense and the need for just punishment, deterrence and the protection of the public. U.S. v. Walker, 447 F.3d 999 (7th Cir. 2006).
7th Circuit holds that defendant was not entitled to notice of court’s intent to reject PSR’s recommendation of acceptance reduction. (761) Defendant argued that he was entitled to notice, prior to the sentencing hearing, that the district court intended to reject the PSR’s recommendation of acceptance of responsibility and to impose instead an obstruction of justice enhancement. Although the notice requirement for adjustments is less exacting than the one applicable to departures, Rule 32 does mandate that the defendant receive some notice of potential adjustments so that defense counsel has a full opportunity to challenge disputed factors relating to the adjustment. The Seventh Circuit ruled that the district court did not commit clear error in denying defendant the acceptance reduction and imposing the obstruction increase. Defendant had ample notice from the plea agreement and from the court that the acceptance of responsibility recommendation was conditional in nature. The agreement noted that “to date” defendant had demonstrated acceptance of responsibility, and that “if he continue[d] to accept responsibility,” he should receive the reduction. At sentencing, after noting that defendant appeared to be “very forthcoming” the night of his arrest, the court found that defendant took the stand and provided “materially false testimony” that contradicted the PSR, the plea agreement, and other evidence. The district court could not have given defendant advance notice of the grounds for the obstruction increase because it was predicated on defendant’s false testimony at sentencing. Defendant acknowledged as part of his plea agreement that if he provided materially false information to the judge or probation officer, the court could impose the obstruction increase. U.S. v. Sharp, 436 F.3d 730 (7th Cir. 2006).
7th Circuit says court abused its discretion in not granting a continuance so that government could supplement record. (761) The parties agreed under defendant’s plea agreement that he should receive a three-level increase under § 3B1.1(b) for being a manager or supervisor of criminal activity involving five or more participants. At sentencing, the court refused to apply the enhancement, finding that the government had not provided sufficient evidence to support the increase. The government asked the court for a continuance so that witnesses could be brought to testify about defendant’s role in the offense, but the court declined to grant one. The Seventh Circuit held that the court’s refusal to grant the continuance under these circumstances was an abuse of discretion. Ordinarily, when both parties agree to a sentencing adjustment, they do not come to court armed with the testimonial, documentary and physical evidence necessary to prove the basis of their agreement. Since both parties had agreed to the managerial role enhancement, when the court found that the facts in the record were insufficient to support that increase, the court should have notified the parties in advance of the sentencing hearing of the issue in dispute, or at sentencing granted a continuance to the party seeking to supplement the record on that issue. U.S. v. Sienkowski, 359 F.3d 463 (7th Cir. 2004).
7th Circuit holds that defendant was entitled to notice of unusual condition of supervised release. (761) Defendant pled guilty to fraud. As a condition of supervised release, the district court prohibited defendant from “access to any Internet Services without prior approval of the probation officer.” The rationale for this condition was that a search of defendant’s office computer turned up a few images of child pornography. Defendant argued that he was entitled to some notice that this condition was an option, see Burns v. U.S., 501 U.S. 129 (1991), and also argued that the condition was too broad. The Seventh Circuit agreed that a defendant is entitled to notice of unusual conditions of supervised release. Although a special condition of supervised release is not an upward departure, making supervised release significantly more onerous than the norm adds to the severity of punishment and thus may be seen as a back-door form of departure. Burns does not hold or say that notice is required only if the judge imposes a term of imprisonment that exceeds the guideline range. Burns concluded that Rule 32(c) affords the defendant notice about (an thus an opportunity to address) all of the important options to be considered at sentencing. An unusual condition of supervised release is such an important option. U.S. v. Scott, 316 F.3d 733 (7th Cir. 2003).
7th Circuit holds that defendant was entitled to notice of sex offender registration requirement. (761) Defendant claimed that the court should have provided notice of its intent to impose a sex offender registration requirement as a condition of supervised release because the condition was analogous to an upward departure for which advance notice is required under Rule 32 and Burns v. United States, 501 U.S. 129 (1991). The Seventh Circuit, following the Fifth Circuit’s decision in U.S. v. Coenen, 135 F.3d 938 (5th Cir. 1998), agreed. The sex offender registration requirement is analogous to an upward departure, since it is not expressly contemplated by the guidelines. Thus, reasonable notice must be given to criminal defendants, either by the PSR, a prehearing submission, or the district court itself, when the court is considering this special condition of supervised release. U.S. v. Angle, 234 F.3d 326 (7th Cir. 2000) (en banc).
7th Circuit holds that PSR did not give defendant sufficient notice of court’s intent to depart. (761) Defendant was convicted of traveling across state lines to engage in a sexual act with a juvenile. The district court departed upward because defendant and the juvenile actually engaged in sexual intercourse at least six times, and defendant had previously seduced at least one other juvenile. Before sentencing, neither the prosecutor nor the district judge suggested that an upward departure was under contemplation as required by Burns v. United States, 501 U.S. 129 (1991). The Seventh Circuit rejected the government’s claim that the PSR gave defendant sufficient notice of the court’s intent to depart. The report noted that the court could depart under § 4A1.3(e), “if reliable information indicates that prior similar adult criminal conduct, not resulting in a criminal conviction, exists…” However, this boilerplate language was generic and could apply to every criminal case. Burns requires more than this. Burns states that the “notice must specifically identify the ground on which the district court is contemplating an upward departure.” The notice must refer not only to the rationale for departure but also the facts that support this theory of departure. U.S. v. Morris, 204 F.3d 776 (7th Cir. 2000).
7th Circuit permits sua sponte reliance on victim impact and police statements. (761) Defendant and others invaded a home, bound up the residents, and held them at gunpoint. In applying a § 2B3.4 bodily injury enhancement, the district court relied on an FBI agent’s testimony about injuries suffered by Concepcion and also considered injuries to Cardona, even though the PSR did not discuss Cardona as a separate victim. The court did so of its own accord, after it had been presented, without defense objection, with Cardona’s victim-impact statement (admitted to support the restitution request for her medical expenses) and her statement to police (admitted to corroborate the FBI agent’s testimony that defendant had struck and injured Concepcion). The Seventh Circuit rejected defendant’s claim that the district court’s sua sponte reliance on its own observations about Cardona’s injuries denied him due process. Rule 32(c)(1) allows a court to consider the PSR and “other matters relating to the appropriate sentence.” Defendant knew of the contents of Cardona’s victim-impact and police statements, and allowed them to be placed before the court without objection. Although defendant did not have advance notice that the evidence would be used to support the bodily injury enhancement, defendant did learn about the judge’s alternate theory before the sentencing hearing was over. He could have, but did not, request a continuance. Moreover, evidence of Cardona’s bodily injuries was cumulative to Concepcion’s proven injuries. U.S. v. Pandiello, 184 F.3d 682 (7th Cir. 1999).
7th Circuit holds that PSR gave adequate notice of upward departure. (761) Defendant complained that he received insufficient notice of the district court’s decision to departure upward. The Seventh Circuit ruled that the PSR gave defendant adequate notice of the departure. The PSR noted that a departure might be warranted under § 4A1.3. When the PSR specifically mentions departure may be warranted under a specific guideline, the notice is adequate. U.S. v. De Angelo, 167 F.3d 1167 (7th Cir. 1999).
7th Circuit rules defendant had adequate notice of departure. (761) Defendant was convicted of drug charges. The district court made a three-level upward departure based on defendant’s aggravated use of the gun. The Seventh Circuit held that the district court gave defendant adequate advance notice of its intent to make the departure. At sentencing, the court said a plea of guilty to only one count might not adequately reflect the seriousness of defendant’s conduct. After pointing to specific paragraphs in the PSR outlining defendant’s egregious use of the gun in his drug business, the court rejected the plea agreement. The next day defendant maintained his plea of guilty, and the court detailed the reasons for an upward departure. The court also stated that defendant’s use of the gun was not within the heartland of § 2D1.1(b)(1). The court then adjourned for eight days to allow the parties to respond to these considerations. Thus, from the beginning of the sentencing process, the court gave defendant clear notice of its intent to consider an upward departure and of the basis for the departure. U.S. v. Raimondi, 159 F.3d 1095 (7th Cir. 1998).
7th Circuit holds failure to give notice of upward departure was plain error. (761) Defendant argued for the first time on appeal that the district court gave him insufficient notice of its intent to depart upwards. The government argued that defendant did not object to the lack of notice and there was no plain error to justify a remand. The Seventh Circuit held that the failure to give defendant proper notice of the upward departure was plain error. The error affected defendant’s substantial rights because it likely affected the outcome of the sentencing proceedings. U.S. v. Otis, 107 F.3d 487 (7th Cir. 1997).
7th Circuit holds government’s pre-hearing submission gave adequate notice of upward departure. (761) Defendants used fraudulently obtained social security numbers and other personal information to obtain credit cards, bank loans and checking accounts. Defendants argued that they did not receive proper advance notice of the court’s intent to depart upward based on the nature and degree of harm suffered by the victims of the scheme. The Seventh Circuit ruled that the government’s response to defendants’ objections to the PSR put defendants on notice of the likelihood of a departure. Although the government conditioned its intent to seek a departure on the district court’s rejection of the government’s loss calculation, and the court ultimately accepted the government’s loss calculation, this did not prejudice defendants. They did not learn that the court would accept the loss calculation until the hearing, and therefore could have and should have thoroughly researched the departure issue beforehand. U.S. v. Akindele, 84 F.3d 948 (7th Cir. 1996).
7th Circuit says late filing of amended PSR did not prejudice defendant. (761) Defendant’s original PSR recommended a reduction for acceptance of responsibility. However, an amended PSR, filed the day before sentencing, withdrew the recommendation. The Seventh Circuit held that the late filing of the PSR did not prejudice defendant’s right to a fair hearing. When defense counsel raised the issue of the late report, the court stated that it would not take it into account. Moreover, a sentencing judge is not bound by a PSR’s recommendations regarding sentencing. Finally, despite the late notice, defense counsel presented a very cogent argument in favor of the § 3E1.1 reduction. U.S. v. Taylor, 72 F.3d 533 (7th Cir. 1995).
7th Circuit holds that PSR’s suggestion gave adequate notice of upward departure. (761) Defendant’s plea agreement contemplated a 46-57 month guideline range, and the government recommended a 48-month sentence. However, the PSR excluded many of defendant’s convictions from his criminal history because of their age, resulting in a 27-33 month range. It also stated that a § 4A1.3 upward departure might be appropriate. The district court departed upward to a 48-month sentence. The Seventh Circuit held that the PSR gave defendant adequate Burns notice of the possibility of an upward departure. The report cited the appropriate guideline section, detailed the exact grounds for departure, and referred to facts to support the grounds. Moreover, during a status hearing the court alerted defendant of the potential for an upward departure. U.S. v. Johnson, 53 F.3d 831 (7th Cir. 1995).
7th Circuit finds defendant had adequate notice of armed career criminal status. (761) Defendant argued that due process required that he receive formal notice before trial that he could be sentenced as an armed career criminal under § 4B1.4. The Seventh Circuit held that defendant received constitutionally adequate notice. First, he received actual notice long before trial, during plea negotiations. One of the reasons defendant refused to plead guilty was the substantially increased penalty he faced as an armed career criminal. Second, the PSR proposed a § 4B1.4 adjustment and specified the prior convictions on which it would be based. Finally, the government filed an additional notice just before actual sentencing formally notifying defendant that he could be sentenced as an armed career criminal. Defendant had ample opportunity to contest the earlier convictions and their applicability to his sentence. U.S. v. Hardy, 52 F.3d 147 (7th Cir. 1995).
7th Circuit reverses for lack of notice of intent to rely on evidence from co-defendants’ hearings. (761) The presentence report recommended an enhancement for supervisorial role under § 3B1.1(b). At sentencing however, the prosecutor said this would be inappropriate and declined to call witnesses on the issue. Nevertheless, the court imposed the enhancement based on testimony presented at the sentencing hearings of defendant’s co-conspirators. The Seventh Circuit reversed for insufficient notice under Fed. R. Crim. P. 32. Some of the evidence from the prior hearings was previously undisclosed to defendant. Because the government did not support the increase, defendant knew that no new evidence would be introduced at the hearing. He also knew that the same judge had found the information in the PSR insufficient to impose an enhancement for a co-conspirator. Defendant had every reason to expect the court to adopt the government’s position. Although he did not object to this evidence, the appellate court chose not to treat the issue as waived. U.S. v. Blackwell, 49 F.3d 1232 (7th Cir. 1995).
7th Circuit judge says that defendants are entitled to advance notice of court’s intent to apply enhancement. (761) Defendant, a money market clerk for a bank, committed bank fraud. Although the PSR did not discuss an abuse of trust enhancement, the district judge, sua sponte, applied the enhancement. The court denied defense counsel’s request for an adjournment to research the issue. The 7th Circuit, in an opinion supported only by its author, Judge Coffey, held that Rule 32 and U.S.S.G § 6A1.3 require reasonable advance notice of the ground on which the district court is contemplating an enhancement, as well as a meaningful opportunity to challenge the issue. Simply being aware of facts that might warrant an enhancement is not sufficient to satisfy Rule 32’s notice requirement. Judge Posner found no need to resolve the issue and create an inter-circuit conflict, since it was “virtually certain” the enhancement was erroneous. Judge Kanne dissented. U.S. v. Jackson, 32 F.3d 1101 (7th Cir. 1994).
7th Circuit remands to reconsider sentence in light of new evidence. (761) Defendants received an enhancement for obstruction of justice and were denied a reduction for acceptance of responsibility because the court believed they lied at their pretrial hearing. On the day of oral argument, the defendants filed motions asking the court to take judicial notice of a letter they received from the AUSA, advising them of potentially exculpatory information. A police detective present during one of the defendant’s interviews after his arrest had a recollection different than some of the testimony offered during the suppression hearing. Neither the court nor defendants knew the content or significance of that information. Because of the possibility of injustice, the case was remanded for further factfinding on the obstruction of justice and acceptance of responsibility issues. U.S. v. Severson, 3 F.3d 1005 (7th Cir. 1993).
7th Circuit remands because court failed to give notice of intent to depart upward. (761) In sentencing defendant, the district court departed upward based on his criminal history. The government conceded, and the 7th Circuit agreed, that the case had to be remanded for resentencing under Burns v. U.S., 111 S.Ct. 2182 (1991). Burns held that before a district court can depart upward on a ground not specified in the presentence report or in a prehearing submission by the government, Fed. R. Crim. P. 32 requires that the district court give the parties reasonable notice that it is contemplating such a ruling. Here, defendant was not given the proper notice. U.S. v. Scroggins, 965 F.2d 480 (7th Cir. 1992).
7th Circuit rules defendant had sufficient opportunity to review presentence report. (761) Two weeks before sentencing, defendant attempted to withdraw his plea and asked for new counsel to be appointed. When his motions were denied, he expressed a desire for his retained lawyer to represent him. The judge rescheduled sentencing for one month later and ordered defendant’s lawyer to file his objections to the presentence report. The lawyer then submitted six pages of typed single-spaced objections. At the hearing, when defendant told the judge he had not seen his lawyer to discuss the presentence report, the judge suspended the hearing for an hour to allow defendant to confer with the lawyer. When the hearing resumed, defendant and his lawyer both told the judge that they had sufficient opportunity to confer about the presentence report. At sentencing, both defendant and his lawyer commented on the presentence report. The 7th Circuit rejected defendant’s claim that he was denied a sufficient opportunity to review and rebut the presentence report. U.S. v. Trussel, 961 F.2d 685 (7th Cir. 1992).
7th Circuit rejects claim that indictment must notify defendant of government’s intent to seek enhanced penalties under section 841(b)(1)(B). (761) The 7th Circuit found no due process violation in the indictment’s failure to notify defendant of the government’s intention to seek an enhanced sentence based upon the weight of the drugs involved under 21 U.S.C. section 841(b)(1)(B). The quantity of drugs is not an element of the offense, but relates to a sentencing factor. Guideline sections 6A1.1 through 1.3 and Fed. R. Crim. Pr. 32 require the district court to give defendant notice of factors which may be used to determine his sentence post-conviction, not pretrial. U.S. v. Levy, 955 F.2d 1098 (7th Cir. 1992).
7th Circuit rules defendant waived 10-day notice requirement for presentence report addendum. (761) Defendant complained that his receipt of an addendum to his presentence report on the day of sentencing violated his right under 18 U.S.C. section 3552(d) to receive the presentence report at least 10 days prior to the sentencing hearing. The 7th Circuit ruled that defendant waived his rights by failing to object at the sentencing hearing. Neither defendant nor his attorney asked for additional time, despite numerous opportunities during and before the sentencing hearing. Moreover, defendant was not significantly prejudiced as a result of the hearing being conducted on the same day that the addendum was filed. Nothing in the addendum was new; it merely presented both parties’ objections to the presentence report and the probation office’s response. U.S. v. Blythe, 944 F.2d 356 (7th Cir. 1991).
7th Circuit holds change of attorney nine days prior to sentencing does not restart 10-day period for presentence report. (761) The 7th Circuit rejected defendant’s contention that the district court violated Fed. R. Crim. P. 32(c)(3), which provides that the presentence report must be disclosed to a defendant and his counsel 10 days prior to sentencing, unless this period is waived by defendant. Defendant actually received the presentence report nine months prior to sentencing. He had failed to appear for a prior sentencing hearing and was at large for this period of time. After he was apprehended, and nine days prior to his new sentencing date, he retained a different attorney to represent him. This “did not restart the ten-day clock.” Moreover, defendant waived his objection by participating in the sentencing hearing without raising it. U.S. v. Knorr, 942 F.2d 1217 (7th Cir. 1991).
7th Circuit holds that opportunity to contest proposed departure satisfied notice requirement. (761) Defendant appealed an upward departure on the ground that he did not receive adequate notice that the district judge intended to depart based on his pattern of bank robberies or the added danger created by his firearm possession while under the influence of drugs. The 7th Circuit affirmed, finding that defendant’s counsel had an opportunity to object to these factors at the sentencing hearing. Furthermore, after imposing sentence and stating the grounds for departure, the judge asked defense counsel if there were any questions about the nature of the sentencing. Counsel did not object on the ground of inadequate notice nor did he ask for an opportunity to respond to the factual basis underlying the grounds for departure. Thus, the departure was proper. U.S. v. Williams, 901 F.2d 1394 (7th Cir. 1990).
8th Circuit does not require notice of prior convictions beyond § 851’s provisions. (761) Defendant was convicted of drug conspiracy charges, and was sentenced to a mandatory minimum life sentence. He argued for the first time on appeal that the government failed to provide proper notice of his eligibility for a mandatory life sentence. The Eighth Circuit found that the government did all that was required under 21 U.S.C. § 851(a), and therefore there was no plain error. As required by § 851(a), before trial, the government served a notice on the court and defendant stating the government’s intent to seek an enhanced sentence under 21 U.S.C. § 841(b), and disclosed the two previous convictions supporting this enhancement. The court rejected defendant’s claim that the government was required to specifically inform defendant that his prior convictions made him eligible for a mandatory life sentence under 21 U.S.C. § 841(b) (1)(a)(viii). Defendant did not cite any authority suggesting a constitutional right to greater notice than what is required by § 851. U.S. v. Chantharath, 705 F.3d 295 (8th Cir. 2013).
8th Circuit holds that Rule 32(h) notice requirement does not apply to variances. (761) Defendant argued that the district court erred by failing to give advance notice of its intent to impose an upward departure. Under Federal Rule of Criminal Procedure 32(h), before the court may depart from the applicable sentencing range on a ground not identified for departure either in the PSR or in a party’s prehearing submission, the court must give the parties reasonable notice that it is contemplating such a departure. However, Rule 32(h) applies only to departures and not to variances. When a district court imposes a variance, Rule 32(h) does not require advance notice. Because the district court here imposed a variance rather than a departure, the Eighth Circuit found no error in the failure to provide notice. U.S. v. Moore, 683 F.3d 927 (8th Cir. 2012).
8th Circuit remands to different judge where judge improperly relied on his personal knowledge of defendant’s history. (761) At sentencing, the parties disputed the significance of a 1987 armed confrontation between defendant and local police. The judge, however, stated that he had been a city prosecutor at the time of the incident, and that his recollection was that the case was an attempt at suicide that went wrong. Further, the judge noted that one of the officers involved in the incident “suffered until the day he died” and “was never the same” after the incident. The Eighth Circuit held that the district court plainly erred in sentencing defendant based on information at sentencing that was not presented in advance to the defendant. Defendant established a reasonable probability that but for the error he would have received a more lenient sentence. Both before and during the hearing, defendant requested a below-guideline sentence. The district court cited the effect—undisclosed to defendant—of the incident on police officers, and then sentenced him to 120 months, the statutory maximum. Without advance notice, defendant could not contest the judge’s description of the police officer’s emotional state. Defendant showed a reasonable probability, but for the Rule 32 error, the court would have imposed a more favorable sentence. U.S. v. Lovelace, 565 F.3d 1080 (8th Cir. 2009).
8th Circuit holds Rule 32 notice requirements did not apply to revocation sentence. (761) Defendant was originally convicted of wire fraud and sentenced to 35 months’ imprisonment. While on supervised release, he engaged in additional acts of fraud. The district court revoked his supervised release and sentenced him to 48 months’ imprisonment, above the guideline recommended range of four to ten months. Defendant argued that Rule 32(h) required the district court to provide notice of its intention to depart upward from the range suggested by U.S.S.G. § 7B1.4(a). The Eighth Circuit rejected the notice argument because a district court’s decision to exceed the suggested range in the policy statements of Chapter 7 is not an upward departure from the guidelines. Thus, the notice requirement of Rule 32 did not apply. U.S. v. Baker, 491 F.3d 421 (8th Cir. 2007).
8th Circuit holds Rule 11 did not require court to discuss applicability of specific guideline provisions. (761) Defendant was convicted of drug charges and sentenced as a career offender. He argued that the court committed plain erred by not informing him at his plea hearing that it would not follow the offense level recommendations in the plea agreement if defendant qualified as a career offender. The Eighth Circuit held that the district court complied with Rule 11(b)(1)(M) and committed no error. The court explained to defendant in some detail that the Sentencing Guidelines applied in his case, that the guidelines provided for ranges of imprisonment, that the guidelines allowed for departures, and that the guidelines were now advisory. Defendant said he understood. This colloquy satisfied the requirements of Rule 11(b)(1)(M). The Rule does not require the court to discuss the applicability of specific guideline provisions. U.S. v. Jackson, 462 F.3d 899 (8th Cir. 2006).
8th Circuit holds that defendant was not entitled to notice of sentence above advisory range. (761) The district court found that both defendants had guideline ranges of 161-188 months. The district court determined that upward departures no longer exist after U.S. v. Booker, 543 U.S. 230 (2005) and, applying the sentencing factors contained in 18 U.S.C. § 3553(a), sentenced them both to non-guidelines sentence of 228 months’ imprisonment. Defendant argued that he was entitled to advance notice under Rule 32(h) of the court’s intent to depart upward. The Eighth Circuit held that defendant was not entitled to Rule 32(h) notice because his sentence above the advisory guideline range was not based on an upward departure. Rather, it was a non-guidelines sentence based upon the district court’s review of the case and defendant’s history in light of all of the § 3553(a) factors. Note under Rule 32(h) is not required when the adjustment to the sentence is effected by a variance rather than by a departure. U.S. v. Sitting Bear, 436 F.3d 929 (8th Cir. 2006).
8th Circuit says defendant is not entitled to notice that court was contemplating revocation sentence above recommended range. (761) Defendants violated the conditions of their supervised release and each was sentenced after revocation to a longer period than recommended in Chapter 7 of the Sentencing Guidelines Manual. They argued that the PROTECT Act added new requirements for revocation sentencing and that the district courts departed by not sentencing with the Chapter 7 range and did so without notice and written reasons. The Eighth Circuit disagreed. After the PROTECT Act, the Chapter 7 policy statements remain nonbonding on the district court. A revocation sentence outside the recommended chapter 7 range is not a departure because there is no binding guidelines from which to depart, and revocation sentences are reviewed for an abuse of discretion. U.S. v. Martin, 371 F.3d 446 (8th Cir. 2004). Since the Chapter 7 police statement are not binding and revocation sentences outside their ranges are not departures, defendant were not entitled to prior notice that the district court was contemplating a sentence outside the Chapter 7 range. U.S. v. White Face, 383 F.3d 733 (8th Cir. 2004).
8th Circuit upholds consideration of prior conviction added to PSR seven days before sentencing. (761) Defendant was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Under his first PSR, he did not qualify for a sentence enhancement under 18 U.S.C. § 924(e), and was subject to a maximum sentence of ten years under § 924(a)(2). However, seven days before sentencing, the probation office revised his PSR to add a 1993 aggravated-battery conviction. The added conviction increased his term of imprisonment to a minimum of 15 years up to a maximum of life. Although defendant objected, the government explained that it disclosed the conviction the same day it was discovered. The Eighth Circuit held that the district court did not abuse its discretion in admitting the aggravated battery conviction. It was not persuaded that the seven-day notice caused unfair surprise or prevented defendant from adequately addressing the validity of the added conviction. Defendant was put on notice of the added conviction immediately after the government discovered it. Most importantly, defendant’s counsel did not request a continuance after learning of the additional conviction. U.S. v. Maxwell, 363 F.3d 815 (8th Cir. 2004).
8th Circuit says departure motion did not injure defendant where he received sentence contemplated by plea agreement. (761) In 1999, defendant was convicted of illegally reentry after deportation. In 2001, he pled guilty again to illegal reentry after deportation, thereby admitting that he also violated a special condition of his previous supervised release. During sentencing, the government moved for an upward departure on the new illegal reentry conviction. In a combined sentencing and supervised release revocation hearing, the district court denied the motion, and sentenced defendant to consecutive sentences of 30 months imprisonment and three years of supervised release for the new illegal reentry conviction, and 24 months of imprisonment for the supervised release violation. The Eighth Circuit rejected defendant’s claim that he had no notice that the government would seek a greater punishment than set forth in the PSR. The government courtesy copied a letter to defendant’s attorney notifying her that the government night seek an upward departure, and it filed a formal position paper with the court 12 days before the hearing. Moreover, the court denied the motion and sentenced defendant within the statutory maximum and within the sentence contemplated by the plea agreement. Defendant suffered no cognizable injury. The government’s motion did not violate defendant’s due process rights. Absent an abuse of discretion, an appellate court will not vacate a revocation sentence that falls within the maximum limit stated in § 3583. U.S. v. Rodriguez-Favela, 337 F.3d 1020 (8th Cir. 2003).
8th Circuit holds that court departed under fraud notes rather than § 5K2.3. (761) Defendant engaged in an elaborate financial fraud and identity theft scheme that caused her victims to lose more than $70,000. Her PSR stated that an upward departure might be warranted based upon the factors listed in USSG § 2F1.1, Notes 11 and 12. Notes 11 and 12 authorize a court to depart upward if the court finds that the loss does not reflect the seriousness of the defendant’s conduct. Note 11(c) specifically permits a departure if “the offense caused reasonably foreseeable, physical or psychological harm or severe emotional trauma.” The district court departed based on the degree of psychological harm that defendant inflicted on her victims. Defendant argued that the district court did not give her proper notice that it was considering an upward departure under § 5K2.3, which authorizes a departure if a victim suffered psychological injury much more serious than that normally resulting from the offense. The Eighth Circuit concluded that the district court based its departure on the factors outlined in Notes 11 and 12 to § 2F1.1. The court identified emotional harm as the reason for the departure and stated that such harm was reasonably foreseeable. Such a departure basis is consistent with the departure factors outlined in Note 11. Thus, defendant received proper notice of the departure. U.S. v. Sample, 213 F.3d 1029 (8th Cir. 2000).
8th Circuit rejects need for advance notice of firearm enhancement. (761) Defendant was convicted of methamphetamine charges. He argued that the district court erred when it imposed a 2-level firearm enhancement without giving him advance notice. The Eighth Circuit rejected U.S. v. Jackson, 32 F.3d 1101 (7th Cir. 1994), which held that a defendant has a right to advance notice, either through the PSR, the prosecutor’s recommendation, or the court, that a specific sentencing enhancement is being considered. Two Eighth Circuit cases have held that a district court can sua sponte impose an adjustment or enhancement to a defendant’s sentence. Here, the government suggested the adjustment at the sentencing hearing and the court provided defendant with an opportunity to object. Defendant did not ask for a recess or a continuance to prepare a response. It may have been appropriate to grant a recess, but since defendant never raised this issue on appeal, the appellate court declined to reach it. Evidence of the firearm was admitted at trial, and there was no error. U.S. v. Korn, 138 F.3d 1239 (8th Cir. 1998).
8th Circuit rejects need for judge to give notice of intent to deny role reduction. (761) Defendants argued that the court erred in failing to provide notice of its intent to deny them a mitigating role reduction. The Eighth Circuit found that it was bound by U.S. v. Rodamaker, 56 F.3d 898 (8th Cir. 1995), which rejected the argument that a district court is required to give advance notice of its intent to deny a role reduction. U.S. v. Coleman, 132 F.3d 440 (8th Cir. 1998).
8th Circuit reverses upward departure for lack of Burns notice of intent to depart. (761) Defendant was convicted of charges stemming from his armed robbery of a restaurant. The district court departed upward based on defendant’s brutal rape of a restaurant employee. The Eighth Circuit reversed because defendant never received proper notice that the court intended to depart, as required by Burns v. U.S., 501 U.S. 129 (1991). The PSR detailed the facts of the alleged rape and the impact that it had on the victim. It recommended a bodily injury enhancement, but explicitly stated that there were no factors to warrant departure. The possibility of a departure was not mentioned until just before the court pronounced sentence. U.S. v. Johnson, 121 F.3d 1141 (8th Cir. 1997).
8th Circuit finds notice of upward departure was adequate. (761) Defendant argued that he did not receive adequate notice of the district court’s intent to depart upward because the notice was untimely and the factors relied on by the district court were different from those in the letter provided to counsel the day before the sentencing hearing. The Eighth Circuit held that the notice of the upward departure was adequate. The notice was provided the day before the sentencing hearing and set forth specific grounds for an upward departure. At the sentencing hearing, the court asked defendant and his counsel if they had had sufficient time to consider the notice of an upward departure and told them it was willing to provide additional time. Defendant and his counsel decided to proceed at that time, and counsel presented arguments opposing the departure. The court did not rely on grounds different from those specified in the court’s notice. U.S. v. McCarthy, 97 F.3d 1562 (8th Cir. 1996).
8th Circuit refuses to extend Burns to sentencing adjustments and enhancements. (761) Defendant argued that the district court violated due process by failing to give her advance notice that it intended to deny her the role reduction under § 3B1.2 recommended by her PSR. The Eighth Circuit, following Circuit precedent, refused to extend the notice requirements of Burns v. U.S., 501 U.S. 129 (1991) to sentencing adjustments and enhancements. Although the government agreed in defendant’s plea agreement not to oppose a minor participant reduction, it reserved the right to defend on appeal the court’s denial of the reduction. Thus, defendant was fairly on notice that the court might sua sponte deny the reduction. U.S. v. Rodamaker, 56 F.3d 898 (8th Cir. 1995).
8th Circuit finds adequate notice of upward departure. (761) Defendant received his original presentence report over two years before his April 18, 1994 resentencing hearing. However, on April 7 and April 15, 1994, defendant received memoranda from the probation office reducing the guideline range of imprisonment and recommending an upward departure. Defendant argued that the district court erred in refusing to grant him a 10-day continuance to review the presentence report as required by Fed. R. Crim. P. 32(c). The 8th Circuit found no error, since nothing in the April 15 memorandum prejudiced defendant’s substantial rights under Rule 32(c)(3)(a). Defendant had adequate notice that the district court was considering an upward departure. The April 7 memorandum, issued more than 10 days before resentencing, recommended an upward departure. At the April 7 hearing, the court granted defendant’s request for a 10-day continuance specifically because it was considering an upward departure. The only substantive alteration contained in the April 15 memorandum was a downward adjustment of the guidelines range set forth in the April 7 memorandum. U.S. v. Saffeels, 39 F.3d 833 (8th Cir. 1994).
8th Circuit says defendant not entitled to sentence recommendation of probation office. (761) The 8th Circuit held that defendant’s complaint that the district court did not comply with the requirements of Rule 32 were meritless. Defendant was not entitled to “any final recommendation as to sentence” prepared by the probation office. U.S. v. Bowers, 21 F.3d 843 (8th Cir. 1994).
8th Circuit refuses to order disclosure of confidential reports. (761) The 8th Circuit found the district court did not err in failing to order the disclosure of the probation officer’s confidential report and doctors’ reports. Rule 32(c)(3)(A) and (B) permits the nondisclosure of information in certain circumstances. If the court believes there is information that should not be disclosed, it must give defendant an oral or written summary of the factual information to be relied on in determining the sentence, and must give the defendant an opportunity to comment upon it. Here, the court specifically stated that it would not rely on the information contained in the confidential reports. Thus, defendant’s right to a fair sentencing hearing was not violated. U.S. v. McLemore, 5 F.3d 331 (8th Cir. 1993).
8th Circuit rejects need for Burns notice of intent to impose obstruction enhancement. (761) Although defendant’s presentence report stated that the probation office was unaware of any grounds for an obstruction of justice enhancement, the district court, sua sponte, imposed the enhancement. Relying on Circuit precedent, the 8th Circuit rejected defendant’s claim that he was entitled to prior notice of the court’s intent to impose the enhancement. Burns v. U.S., 111 S.Ct. 2182 (1991) does not mandate that notice be given before a district court sua sponte addresses an adjustment. Given the fact that defendant knew of the potential bases for enhancement in the guidelines and the potential factual bases in the trial testimony, he could not claim that he was surprised and unable to comment upon the enhancement at sentencing. U.S. v. Willis, 997 F.2d 407 (8th Cir. 1993).
8th Circuit affirms sufficiency of notice of upward departure in presentence report. (761) In U.S. v. Hill, 911 F.2d 129 (8th Cir. 1990), the 8th Circuit rejected defendant’s claim that he did not receive sufficient notice of a possible upward departure. The case was vacated and remanded by the Supreme Court for reconsideration in light of Burns v. U.S., 111 S.Ct. 2182 (1991), which held that before a court can depart upward on a ground not previously identified, the court must give the parties reasonable notice. On remand, the 8th Circuit reaffirmed that defendant received adequate notice of the upward departure. The presentence report specified various grounds on which a departure might be based. A hearing was held during which defendant had the opportunity to address the possibility of a departure. The court rejected defendant’s suggestion that Burns be expanded to require that notice of the upward departure come from the district court itself. U.S. v. Hill, 951 F.2d 867 (8th Cir. 1991).
8th Circuit holds defendant received notice of departure where grounds were stated in presentence report. (761) The 8th Circuit rejected defendant’s claim that the district court failed to give adequate notice of its intent to depart from the guidelines range. Under Burns v. U.S., 111 S.Ct 2182 (1991), formal notice is not required if (1) the presentence report recognizes that certain factors could justify a departure, or (2) the government requests such a departure. Here, the presentence report expressly noted the presence of factors which might warrant departure. Additionally, prior to the sentencing hearing, the government requested that the district court depart upward from the guideline range. U.S. v. Andrews, 948 F.2d 448 (8th Cir. 1991).
9th Circuit finds above-guidelines sentence resulted from a variance. (761) Under Federal Rule of Criminal Procedure 32(h), a district court that intends to depart downward from the guidelines range on a ground not identified for departure in the presentence report or the parties’ prehearing submissions must give notice to the defendant. By contrast, a district court is not required to give notice before granting a variance. Here, the district court referenced the factors under 18 U.S.C. § 3553(a), found that defendant’s guidelines range was inadequate to reflect the seriousness of his offense, and imposed a sentence above the range. The Ninth Circuit held that the district court had granted a variance, not a departure. U.S. v. Moschella, 727 F.3d 888 (9th Cir. 2013).
9th Circuit finds notice unnecessary for consecutive sentences above Guidelines. (761) Defendant pleaded guilty to fraud and money laundering pursuant to a plea agreement in which both parties agreed that defendant should receive a 180-month sentence. That sentence was below the guidelines range of 188-235 month. At sentencing, the district court imposed consecutive sentences totaling 264 months. The Ninth Circuit held that the district court had not erred in failing to provide defendant of notice of its intent to impose a sentence above the guidelines range. The court rejected defendant’s contention that the district court’s imposition of consecutive sentences constituted an upward departure and instead found that the district court’s sentence represented a variance. U.S. v. Rangel, 697 F.3d 795 (9th Cir. 2012).
9th Circuit finds defendant received adequate notice of supervised release condition. (761) Defendant pleaded guilty to possession of child pornography pursuant to a plea agreement stating the district court could impose a condition of supervised release requiring the installation of monitoring software on defendant’s computer. At sentencing, the district court informed the parties that it was considering imposing a condition of supervised release requiring installation of monitoring software on defendant’s computer. Defendant argued against imposition of that condition, claiming that less restrictive alternatives existed. The district court imposed the condition. On appeal, the Ninth Circuit held that defendant received adequate notice that the court was considering imposing the computer-monitoring condition. The court noted that defendant apparently anticipated that the court would impose the condition because he was prepared at sentencing to argue against it. U.S. v. Quinzon, 643 F.3d 1266 (9th Cir. 2011).
9th Circuit says failure to give notice of supervised release condition was not plain error. (761) At defendant’s sentencing on carjacking charges, the district court ordered defendant as a condition of supervised release to remain outside of San Francisco. Defense counsel objected to the condition on the ground that it was overbroad and violated defendant’s First Amendment rights. On appeal, defendant argued that he had insufficient notice of the condition. Reviewing for plain error, the Ninth Circuit held that the failure to give notice had not affected defendant’s substantial rights because his attorney had immediately objected, and counsel’s objections raised the same arguments that defendant made on appeal. U.S. v. Watson, 582 F.3d 974 (9th Cir. 2009).
9th Circuit holds that sentence was a variance, not a departure, and no notice required. (761) Defendant pleaded guilty to possession of child pornography. As part of his plea, he acknowledged that he had intentionally destroyed his computer and electronic storage material that contained additional child pornography. The presentence report stated that defendant had been convicted of assaulting an 11-year-old boy; that while he was on parole from that offense, he had been returned to prison six times for parole violations, including violations involving inappropriate conduct with minors; and that shortly before his arrest, the mother of defendant’s children alleged that he had sexually molested his three-year-old son. The PSR stated that this history may warrant a sentence outside the Guidelines. Defendant argued for imposition of the mandatory minimum sentence of 120 months, but the district court imposed a 168-month sentence. The Ninth Circuit held that the district court’s sentence was a variance from the Guidelines, and not a departure, and therefore Federal Rule of Criminal Procedure 32(h) did not require the court to give notice before imposing sentence. U.S. v. Vanderwerfhorst, 576 F.3d 929 (9th Cir. 2009).
9th Circuit says court gave adequate notice of above-Guidelines sentence. (761) Defendant pleaded guilty to illegal reentry after deportation, in violation of 8 U.S.C. § 1326. The presentence report calculated defendant’s advisory Guidelines range as 46 to 57 months, but stated that defendant’s two prior convictions under § 1326 and prior felony drug conviction may warrant a sentence outside the Guideline range. At sentencing, the district court disagreed with the PSR’s calculation of defendant’s criminal history and found a Guideline range of 21 to 27 months. Before imposing sentence, the court told the parties that it believed that defendant’s prior criminal history warranted a sentence above the Guidelines range. Defense counsel argued for a Guidelines sentence but did not ask for a continuance. The court imposed a sentence of 48 months. Without deciding whether the district court’s sentence constituted a departure or a variance from the Guidelines, the Ninth Circuit held that defendant had adequate notice of the district court’s intention to impose a sentence outside the Guideline range. U.S. v. Cruz-Perez, 567 F.3d 1142 (9th Cir. 2009).
9th Circuit says parties’ prehearing briefs may provide notice of departure. (761) Prior to defendant’s sentencing for being a felon in possession of a firearm, the parties agreed that § 5G1.3(b) required defendant’s sentence to run concurrently with a state sentence that defendant was currently serving, but the government argued that the court should exercise its discretion and impose a sentence consecutive to the state sentence. At sentencing, the court stated that it believed that defendant’s sentence should run consecutively to his state sentence but believed that a consecutive sentence would be a departure that it could not impose unless the court itself gave defendant notice of its intent to depart before the sentencing hearing. Accordingly, it imposed a concurrent sentence. The government appealed, and the Ninth Circuit held that the parties’ prehearing submissions provided adequate notice of a possible departure and that the court was not required to give notice. U.S. v. Hahn, 557 F.3d 1099 (9th Cir. 2009).
9th Circuit says continuance unnecessary before imposing sentence that varied from Guidelines. (761) At defendant’s sentencing, the district court varied upward from the Guidelines range of 27 to 33 months and imposed a sentence of 40 months. On appeal, defendant argued that the district court should have granted a continuance on its own motion before imposing a sentence that varied from the Guideline range. The Ninth Circuit found that the district court relied on “garden variety considerations” in varying from the Guidelines and that defense counsel should have been prepared to address those concerns. Accordingly, the court of appeals found no error in the district court’s decision not to continue sentencing. U.S. v. Orlando, 553 F.3d 1235 (9th Cir. 2009).
9th Circuit amends 2006 opinion holding that notice requirement survives Booker. (761) Federal Rule of Criminal Procedure 32(h) requires a district court to give a defendant notice before it departs upward from the guideline range on a ground not identified in the presentence report or the government’s sentencing memorandum. In June 2006, the Ninth Circuit held that Rule 32(h) survives the Supreme Court’s decision in U.S. v. Booker, 543 U.S. 220 (2005), and requires a district court to give notice of its intent to depart from the range suggested by the Sentencing Guidelines. On July 2, 2008, the court issued a new opinion finding that its decision was not inconsistent with Irizarry v. U.S., 553 U.S. 708, 128 S.Ct. 2198 (2008), which held that a court need not give notice before it relies on the factors set forth in 18 U.S.C. § 3553(a) to vary from the Guideline range. U.S. v. Evans-Martinez, 530 F.3d 1164 (9th Cir. 2008), withdrawn and superseded, U.S. v. Evans-Martinez, 530 F.3d 1164 (9th Cir. 2008).
9th Circuit upholds refusal to disclose probation office’s sentencing recommendation. (761) Prior to defendant’s sentencing on his bank robbery convictions, the probation office provided him with the presentence report, but declined to disclose the confidential sentencing recommendation that the probation officer made to the district judge. At sentencing, the district court disclosed that the probation officer had recommended a sentence at the high end of the sentencing range because the officer believed that defendant was “a danger.” The district court declined to follow that recommendation and imposed a sentence almost two years below the probation officer’s recommendation. The Ninth Circuit held that the district court’s refusal to disclose to defendant the probation officer’s confidential sentencing recommendation complied with the requirement of Federal Rule of Criminal Procedure 32 that a court disclose all factual information in the recommendation. On that basis, the court held that the non-disclosure of the sentencing recommendation did not violate due process. U.S. v. Baldrich, 471 F.3d 1110 (9th Cir. 2006).
9th Circuit says failure to give notice of restitution amounts was harmless error. (761) Under 18 U.S.C. § 3664, the government is required to provide the probation officer with a list of the amounts subject to restitution at least 60 days prior to sentencing. The government did not move for restitution from defendant, who was convicted of manslaughter, for his victim’s future lost income until 21 days prior to sentencing, and it did not specify the amount of restitution until five days prior to sentencing. At sentencing, the district court held that the victim’s future lost income was not a proper subject of restitution. The Ninth Circuit held that because defendant received the functional equivalent of notice in his plea agreement and was not ordered to pay restitution for future lost income, the government’s failure to abide by the statutory deadlines was harmless. U.S. v. Cienfuegos, 462 F.3d 1160 (9th Cir. 2006).
9th Circuit holds that notice requirement survives Booker. (761) Federal Rule of Criminal Procedure 32(h) requires a district court to give a defendant notice before it departs upward from the guideline range on a ground not identified in the presentence report or the government’s sentencing memorandum. The Ninth Circuit held that Rule 32(h) survives the Supreme Court’s decision in U.S. v. Booker, 543 U.S. 220 (2005), and requires a district court to give notice of its intent to sentence outside the range suggested by the Sentencing Guidelines. U.S. v. Evans-Martinez, 530 F.3d 1164 (9th Cir. 2008), withdrawn and superseded, U.S. v. Evans-Martinez, 530 F.3d 1164 (9th Cir. 2008).
9th Circuit says notice is not required before court imposes consecutive sentences. (761) Federal Rule of Criminal Procedure 32(h) requires that the court must give the parties notice that it may depart from the sentence required by the guidelines. The applicable guidelines provided that defendant’s sentence could be concurrent or consecutive to defendant’s prior state sentences. Prior to defendant’s sentencing, the district court did not give him notice that it was considering ordering his federal sentence to run consecutively to his state sentence. The Ninth Circuit held Rule 32 does not require a court to give notice that it is considering imposing consecutive sentences, as long as the consecutive sentences do not constitute a departure from the guidelines. U.S. v. Fifield, 432 F.3d 1056 (9th Cir. 2005).
9th Circuit finds that defendants received insufficient notice of departure. (761) Defendant fraudulently offered to find financing for companies in financial difficulties. The presentence report recommended no upward departure for the impact of the scheme on the victims, but prior to sentencing the government moved for an upward departure based on the effect of defendant’s offense on the victim companies and their owners. The court declined to depart on this ground, but did depart upward because defendant preyed on desperate individuals. The Ninth Circuit held that defendant did not have sufficient notice of this ground and remanded for resentencing. U.S. v. Booth, 309 F.3d 566 (9th Cir. 2002).
9th Circuit reverses consecutive sentences imposed without notice of intent to depart. (761) Defendant was convicted of sexual abuse offenses involving two victims. Although the guidelines grouping rules did not provide for consecutive sentences, the district court imposed the sentences for the offenses involving one victim consecutively to the sentences for the offenses involving the other victim. The Ninth Circuit held that it was permissible for the district court to depart upward by imposing consecutive sentences, but that the district court must give specific notice to the defendant of its intent to do so. U.S. v. Williams, 291 F.3d 1180 (9th Cir. 2002).
9th Circuit says notice of intent to depart at sentencing was reasonable absent objection. (761) Neither the presentence report nor the government sought an upward departure. Nevertheless, at the beginning of the sentencing hearing the court advised the parties that it was considering an upward departure, and gave defense counsel an opportunity to address the issue. Defense counsel asked for additional time to brief a different issue, but did not seek more time on the departure issue. Instead, counsel addressed the merits, arguing that departure was unwarranted. After argument, the district court departed upward by two levels. On appeal, the Ninth Circuit rejected defendant’s argument that he had inadequate notice of the court’s intent to depart upward. Although Burns v. U.S., 501 U.S. 129, 137 (1991) requires the district court to give reasonable notice, the notice here was reasonable. Defense counsel did not object, did not request a continuance, and thoroughly argued against the upward departure, thereby demonstrating his opportunity to comment and be heard. U.S. v. Hernandez, 251 F.3d 1247 (9th Cir. 2001).
9th Circuit says government is entitled to notice of intent to depart downward. (761) In Burns v. U.S., 501 U.S. 129, 138 (1991), the Supreme Court held that a district court must give a defendant reasonable notice of its intent to depart upward on a ground not identified in either the PSR or the pre-hearing submission by the government. In the present case, the district court departed downward without notice to the government. Several circuits have held that Burns applies equally to the government. See U.S. v. Maddox, 48 F.3d 791, 799 (4th Cir. 1995); U.S. v. Andruska, 964 F.2d 640, 644 (7th Cir. 1992); see also U.S. v. Jagmohan, 909 F.2d 61, 63 (2d Cir. 1990) (same holding pre-Burns). Agreeing with these cases, the Ninth Circuit held that the government was entitled to notice of the district court’s intention to depart downward. The sentence was reversed. U.S. v. Green, 105 F.3d 1321 (9th Cir. 1997).
9th Circuit finds adequate notice that prior conviction would be used in sentencing. (761) Defendant argued that the government gave no notice that it would seek an enhanced sentence based on defendant’s prior state conviction. The Ninth Circuit found that defendant was “clearly aware from the presentence report that the probation officer recommended the mandatory 40 month sentence.” Defendant admitted to the district court that he had read the report. Thus, even if he was not aware of the government’s intended use of the statute before he signed the plea agreement, “he was made aware of the applicability of the Repeat Offender Statute prior to sentencing and had an opportunity to challenge the presentence report at the sentencing hearing.” U.S. v. Kaneakua, 105 F.3d 463 (9th Cir. 1997).
9th Circuit reverses for failure to establish that defendant read the supplemental presentence report. (761) The plain language of Rule 32(c)(3), Fed. R. Crim. P. requires that the court determine whether or not the defendant and his counsel have had the opportunity to read and discuss the presentence report. Here, the colloquy at sentencing established only that defendant’s counsel had received and read the supplemental memoranda, not that defendant had. The court found no merit in the government’s arguments that the error was not prejudicial because the sentencing was limited by the scope of a prior remand, or that defendant had previously received all of the information. The sentence was vacated and the case was remanded for resentencing. U.S. v. Petty, 80 F.3d 1384 (9th Cir. 1996).
9th Circuit requires notice of intention to rely on evidence from codefendant’s trial. (761) Defendant has a right to know what evidence will be used against him at the sentencing hearing. This notice requirement is satisfied when evidence from a codefendant’s trial is included in the presentence report. However, in this case, one item of evidence was raised for the first time at the first sentencing hearing, and the judge did not mention the other until the final sentencing hearing three weeks later. The Ninth Circuit found no error, holding that, as to the first item of evidence, the three-week delay was sufficient notice. As to the second item, defendant made no objection and did not challenge the truthfulness of the evidence on appeal. Accordingly, he waived the issue, and failed to show plain error on appeal. U.S. v. Pinto, 48 F.3d 384 (9th Cir. 1995).
9th Circuit finds adequate notice of court’s intention not to follow presentence report. (761) Defendant argued that he did not learn until “the close of sentencing,” that the district court intended to reject the presentence report’s recommendation to reduce his offense level by four levels. The 9th Circuit found no merit in the argument, noting that the district court had first questioned the four level reduction at the change of plea hearing, more than a month before sentencing. At that hearing, the government specifically indicated it would oppose the reduction, and both parties briefed the issue and argued it to the court. Thus, defendant had ample notice and opportunity to litigate the issue. U.S. v. Sanders, 41 F.3d 480 (9th Cir. 1994).
9th Circuit says failure to determine that defendant read presentence report was harmless. (761) The district court’s failure to determine whether defendant read the presentence report before imposing sentence (Fed. R. Crim. P. 32(a)(1)(A)) was harmless, where defendant showed neither prejudice nor that he failed to read the report. The 9th Circuit therefore declined to remand for resentencing in spite of the error. U.S. v. Davila-Escovedo, 36 F.3d 840 (9th Cir. 1994).
9th Circuit says presentence report’s recommendation for departure gave adequate notice. (761) The presentence report stated the grounds for departure, and recommended that the court depart upward. The 9th Circuit held that this gave the defendant adequate notice to enable him to meaningfully comment on the departure. U.S. v. Ramirez-Jiminez, 967 F.2d 1321 (9th Cir. 1992).
9th Circuit holds that government’s opposition to PSR provided adequate notice of criminal history departure. (761) In its opposition to the presentence report, the government argued that category II more accurately reflected the appellant’s past criminal conduct than the presentence report’s recommendation category I. This opposition was filed ten days prior to sentencing. A PSR addendum recommending the increase was filed three days prior to sentencing. The appellant failed to raise any objections in the district court. Accordingly, the 9th Circuit found that the appellant had sufficient notice of the possible departure. U.S. v. Martinez-Gonzalez, 962 F.2d 874 (9th Cir. 1992).
9th Circuit holds that defendant must be given advance notice of factors on which the court intends to rely at sentencing. (761) In U.S. v. Nuno-Para, 877 F.2d 1409 (9th Cir. 1989), the 9th Circuit held a defendant must be given advance notice of the district court’s intention to depart. The notice requirement is not satisfied by the fact that the relevant information is present in the presentence report. Extending the Nuno-Para rule in this case, the 9th Circuit held that the defendant should have been notified that the court intended (1) to deny him the acceptance of responsibility reduction, (2) to depart from the guidelines based on his state of mind, (3) to enhance the sentence based on the firearm discharge and (4) to run the sentences consecutively rather than concurrently. Chief Judge Wallace concurred and dissented separately. U.S. v. Brady, 928 F.2d 844 (9th Cir. 1991), abrogated by Nichols v. U.S., 511 U.S. 738, 114 S.Ct. 1921 (1993).
9th Circuit finds that defendant was given reasonable notice of the position taken by the sentencing judge. (761) The Commentary to Sentencing Guidelines Policy Statement § 6A1.3 states that if sentencing factors are the subject of reasonable dispute, “the court should, where appropriate, notify the parties of its tentative findings and afford an opportunity for correction of oversight or error before sentence is imposed.” Although the court made no tentative findings here, the 9th Circuit found that the defendant had adequate opportunity to marshall his cases. The change in the presentence report made it clear that the quantity of drugs was an issue. The defendant had received a continuance to enable him to file a written report by his expert, and he filed the report together with a written argument. Therefore he had reasonable notice and an opportunity to provide information and argument. U.S. v. Upshaw, 918 F.2d 789 (9th Cir. 1990).
9th Circuit reverses for inadequate notice of intent to depart. (761) Before a judge can depart upward from the guideline range, the defendant must be notified of the possible grounds for upward departure and must be given a chance to respond. In computing a defendant’s criminal history score, the guidelines exclude from consideration convictions that are old or that were reversed on appeal and charges that did not result in conviction. However, a district court may rely on some such events to justify an upward departure. Defendant’s presentence report summarized defendant’s criminal history, but did not indicate that the history included factors warranting departure from the guidelines sentence, and the district judge likewise did not advise the defendant of possible grounds for departure. Accordingly, Judges Canby, Wiggins, and Fernandez held that the upward departure did not comply with the requirements of notice and opportunity to respond. U.S. v. Cota-Guerrero, 907 F.2d 87 (9th Cir. 1990).
9th Circuit vacates upward departure from guidelines because defendant was not notified of possibility of departure. (761) The guidelines permit judges to depart from the guidelines in some cases. Before a judge may impose an upward departure, however, either the presentence report or the judge must notify the defendant of factors that might constitute grounds for departure. Judges Alarcon, Browning, and Rymer vacated defendant’s sentence, which included an upward departure, because of inadequate notice. While the trial judge justified the upward departure by reference to the effect of defendant’s crime on two persons, the presentence report had suggested that no factors would warrant a departure in the case; and the government’s sentencing memorandum, while advocating a “vulnerable victim” adjustment within the guidelines, had not recommended that a departure be made if an adjustment was held inappropriate. U.S. v. Hedberg, 902 F.2d 1427 (9th Cir. 1990).
9th Circuit holds that presentence report gave adequate notice of possible departure. (761) The 9th Circuit rejected the defendant’s argument that the district court must expressly notify the defendant that it intends to depart from the guidelines. Here the presentence report identified several factors possibly warranting departure from the guidelines. Defendant was given ample opportunity to comment on those factors, and all of the factors identified as basis for departure by the court were listed as possible departure grounds in the presentence report and commented upon by defendant’s counsel before sentencing. Thus defendant was given a “meaningful opportunity to comment” as required by Rule 32. U.S. v. Acosta, 895 F.2d 597 (9th Cir. 1990).
10th Circuit finds court need not give notice before sentencing above revocation policy statements. (761) In U.S. v. Burdex, 100 F.3d 882 (10th Cir. 1996), the 10th Circuit held that a sentencing court is under no obligation to give notice before imposing a sentence in excess of the Chapter 7 sentencing range. Defendant asked the court to reconsider this holding in light of its recent holding that notice is now required for variances under the now-advisory Sentencing Guidelines. U.S. v. Atencio, 476 F.3d 1099 (10th Cir. 2007). He argued that there was no principled distinction between a sentencing range under the now-advisory guidelines and one under Chapter 7. The Tenth Circuit held that Atencio did not affect its holding in Burdex; neither the language nor the logic of Atencio supported the conclusion that notice is now required under Chapter 7. U.S. v. Redcap, 505 F.3d 1321 (10th Cir. 2007).
10th Circuit holds that Rule 32(h) survived Booker and requires court to notify both parties of intent to depart on grounds not identified in PSR. (761) In U.S. v. Monroy, 135 Fed. App. 190 (10th Cir. 2005), the Tenth Circuit held that post-Booker, the government is entitled to notice under Rule 32(h) when the district court departs downward from the guidelines. Here, the Tenth Circuit held that Rule 32(h) survives Booker and requires a court to notify both parties of any intent to depart from the advisory guidelines as well when the basis for such departure is not identified in the presentence report or in a presentencing submission. Here, the district court failed to comply with this requirement, and remand was required. U.S. v. Dozier, 444 F.3d 1215 (10th Cir. 2006).
10th Circuit rules that the government is entitled to notice that court is considering downward departure. (761) In U.S. v. Burns, 501 U.S. 129 (1991), the Supreme Court held that a sentencing court must give the defendant reasonable notice of its intention to depart upward from the applicable guideline range on a ground not identified as a ground for departure in either the PSR or prehearing submission to the court. The government argued that it was also entitled to notice that the court is considering a downward departure so that it may develop a full record and advance arguments on the propriety of departure. Following six of its sister circuits, the Tenth Circuit agreed. Thus, the court erred by not providing adequate notice to the government in this case. U.S. v. Fuentes, 341 F.3d 1216 (10th Cir. 2003).
10th Circuit affirms departure based on six uncounted foreign convictions. (761) The district court departed upward from criminal history category IV to V on the basis of defendant’s seven instances of criminal conduct that occurred in Great Britain from 1970 to 1977. Six of these instances resulted in convictions and periods of imprisonment, while one, a charge of attempted murder, resulted in defendant’s hospital commitment. The Tenth Circuit affirmed the departure. A court may depart based on a prior sentence that is too old to be included in a criminal history calculation if the court finds that the sentence is evidence of similar, or serious dissimilar, criminal conduct. The district court properly determined that defendant’s foreign convictions from the 1970s were serious dissimilar conduct. All of defendant’s assaults resulted in actual bodily harm and most of his sentences of imprisonment exceeded one year and involved additional concurrent sentences. Defendant received sufficient notice that the court would rely on the foreign convictions as a ground for an upward departure. The Tenth Circuit had previously remanded for resentencing on the grounds that the outdated foreign convictions could not be used as predicate convictions under the ACCA, but stated that an upward departure was possible on the basis of inadequate criminal history. U.S. v. Concha, 294 F.3d 1248 (10th Cir. 2002).
10th Circuit says no waiver where defendant had no notice of special condition of supervised release. (761) Defendant challenged a special condition of supervised release requiring him to register as a sex offender. The government argued that defense counsel failed to object to the condition and therefore the review should be for plain error. The Tenth Circuit held that defendant did not waive his objection to the special condition because he had no notice that the district court was considering the condition until the court stated its tentative sentence near the beginning of the sentencing hearing. Defendant was given an opportunity to comment on the condition. However, as in U.S. v. Edgin, 92 F.3d 1044 (10th Cir. 1996), the complete lack of notice made it impossible for the parties to anticipate the nature of the special condition and short-circuited the significance of any opportunity to comment. This case was distinguishable from U.S. v. Fabiano, 169 F.3d 1299 (10th Cir. 1999), where the court reviewed a similar condition of release only for plain error because Fabiano did not object to the condition at sentencing. In Fabiano, the PSR specifically listed compliance with a sex offender registration law as a possible special condition for the court to order. U.S. v. Bartsma, 198 F.3d 1191 (10th Cir. 1999), overruled on other grounds by U.S. v. Atencio, 476 F.3d 1099 (10th Cir. 2007).
10th Circuit requires notice of sex offender registration requirement where not related to charged offense. (761) Defendant pled guilty to being a felon in possession of a firearm. Based on his criminal history, the district court imposed, as a condition of supervised release, a requirement that he register as a sex offender in any state in which he resided. Defendant argued that he was entitled to presentence notice that the condition was under consideration. In Burns v. United States, 501 U.S. 129 (1991), the Supreme Court held Rule 32 required reasonable notice to the parties when a district court is contemplating an upward departure based on a ground not listed in the PSR or in a prehearing submission by the government. Allowing such departures would render “meaningless the parties’ express right [under Rule 32] to comment upon … matters relating to the appropriate sentence.” The Tenth Circuit held that the Burns rationale applies when a district court is considering imposing a sex offender registration requirement as a special condition of supervised release, and the condition is not on its face related to the charged offense. Defendant was entitled to receive reasonable presentence notice that a special condition of supervised release requiring him to register as a sex offender was a possibility. U.S. v. Bartsma, 198 F.3d 1191 (10th Cir. 1999), overruled on other grounds by U.S. v. Atencio, 476 F.3d 1099 (10th Cir. 2007).
10th Circuit holds that failure to comply with Rule 32(c)(1) was harmless. (761) The government and defendant agreed that he was accountable for only 100‑500 grams of cocaine, because two witnesses who reported far larger quantities were unreliable. After sentencing, the judge told defense counsel for the first time that in determining that these witnesses were credible, he had considered the fact that the government had thought enough of one witness to include information from him in an affidavit in another proceeding. Defendant argued that he was not given advance notice of this information as required by Fed. R. Crim. P. 32(c)(3)(A). The Tenth Circuit held that the error was harmless, because it did not have a “substantial influence” on the sentencing determination. In judging the witnesses’ credibility, the court placed the greatest significance on the fact that they corroborated each other. The court merely listed one witness’s affidavit in the other proceeding as among the factors it considered in judging his credibility. U.S. v. Garcia, 78 F.3d 1457 (10th Cir. 1996).
10th Circuit holds that 18 U.S.C. § 3147 is self-executing sentence enhancement provision. (761) Section 2J1.7, which implements 18 U.S.C. § 3147, requires a three-level increase if the offense of conviction was committed while the defendant was on release on another federal charge. Defendant argued that the government did not give proper notice that it intended to ask for an enhanced sentence. The only notice defendant received of the possibility of a § 3147 penalty was through his presentence report. The Tenth Circuit held that § 3147 is a self-executing sentence enhancement rather than a separate offense of conviction; therefore, the notice he received in his PSR was adequate. Defendant was notified of the possibility of enhancement prior to sentencing and thus had the opportunity to object. U.S. v. Browning, 61 F.3d 752 (10th Cir. 1995).
10th Circuit says court need not give notice of intent to reject PSR’s recommendations. (761) The probation department and the prosecution disagreed as to defendant’s entitlement to an acceptance of responsibility reduction, his role in the offense, and how to treat the powder cocaine for sentencing purposes. The district court, in combining all these things, arrived at a different offense level than either the government or the probation department. The Tenth Circuit held that defendant was not entitled to advance notice of the court’s intention to reject the recommendations of the prosecution and the probation department. Defendant was given notice and opportunity to comment on the probation officer’s recommendations. He was also aware of the difference in opinion between the probation department and the prosecution concerning these issues, and was given an opportunity to address each of these factors. U.S. v. Robertson, 45 F.3d 1423 (10th Cir. 1995).
10th Circuit holds Rule 32 requires notice of contemplated degree of departure. (761) Fed. R. Crim. P. 32(c)(2)(B) requires the presentence report to contain the offense level and criminal history category that the probation officer believes applicable. The 10th Circuit held that these requirements apply equally to departure and non-departure sentences. Thus, Rule 32 requires the presentence report to identify the factors considered relevant to determining the appropriate degree of departure. “However, the presentence report’s failure to contain the alternate departure calculations will not destroy the validity of the sentence imposed so long as the sentencing court has given both parties notice of the facts warranting departure and of the method or reasons to be employed in fixing the degree of departure and a reasonable opportunity to be heard concerning these matters.” U.S. v. Kalady, 941 F.2d 1090 (10th Cir. 1991).
11th Circuit requires court to provide notice of new information used to decide retroactivity motion. (761) Defendant moved under § 3582(c)(2) for a sentence reduction based on recent amendments to the crack guidelines. Before the court ruled on defendant’s motion, the probation office sent a memo to the court that was not docketed or provided to either of the parties. The report stated that, while in prison, defendant had been sanctioned three times for possession of marijuana and once for being in an unauthorized area. In denying defendant’s motion, the district court acknowledged defendant’s eligibility for a sentencing reduction, but declined to reduce his sentence, relying on the prison sanctions reported in the probation officer’s memo. The Eleventh Circuit held that the district court was required to provide the parties notice of, and an opportunity to respond to, new information used in deciding the § 3582(c)(2) motion. Both the Fifth and Eighth Circuits have squarely held that a party should be given notice of and an opportunity to challenge new information relied on by the court in a § 3582(c)(2) proceeding. U.S. v. Jules, 595 F.3d 1239 (11th Cir. 2010).
11th Circuit holds that defendant was not entitled to notice of supervised release conditions addressing sexual misconduct. (761) Defendant, a convicted sex offender, was convicted of being a felon in possession of a firearm. In addition to the standard conditions of release, the district court imposed several special conditions of release relating to his status as a sex offender. The Eleventh Circuit rejected defendant’s claim that he was entitled to a new sentencing hearing because the district court failed to provide notice that it intended to impose special conditions on his supervised release. In Irizarry v. United States, 553 U.S. 708, 128 S.Ct. 2198 (2008), the Supreme Court held that the notice requirement in Burns v. United States, 501 U.S. 129 (1991), does not apply to a variance from the advisory range under the Sentencing Guidelines. The district court was not required to notify defendant before it imposed special conditions to address his proclivity for sexual misconduct. U.S. v. Moran, 573 F.3d 1132 (11th Cir. 2009).
11th Circuit holds that Rule 32(h) notice is not required for upward variance from guidelines. (761) The district court imposed a sentence six months above defendant’s advisory guideline range because of the likelihood that defendant would continue to threaten his wife. Defendant argued that the district court violated Rule 32(h) by not giving advance notice that it was considering a ground for departure not identified in the PSR or a prehearing government submission. The Eleventh Circuit joined the Third, Seventh and Eighth Circuits in concluding that Rule 32(h) does not apply to variances outside the advisory guideline range. After Booker, parties are inherently on notice that the guidelines sentencing range is advisory and that the district court must consider the factors expressly set out in § 3553(a) when selecting a reasonable sentence between the statutory minimum and maximum. U.S. v. Irizarry, 458 F.3d 1208 (11th Cir. 2006).
11th Circuit finds PSR provided adequate notice of departure six days before sentencing. (761) Defendant was the owner and chief executive officer of a home health care provider that submitted falsified Medicare claims to a fiscal intermediary. She complained that she did not receive adequate notice that the district judge would depart upward in imposing a $2.5 million fine. The Eleventh Circuit held that defendant received adequate notice because six days before sentencing her attorney received the revised PSR containing notice of the possibility of departure. The notice advised that the court might consider an upward departure from the stated fine range because defendant profited substantially from her involvement in the offense and the sale of the company. Defendant’s sentencing memorandum acknowledged notice of the potential departure and challenged the rationale that she would profit from the sale of her company. Defendant acknowledged that she received notice of the possibility of departure six days before sentencing and she objected to an upward departure in her sentencing memorandum. The notice she received was reasonable. U.S. v. Garrison, 133 F.3d 831 (11th Cir. 1998).
11th Circuit says § 2J1.7 does not require notice of enhancement before accepting plea. (761) Defendant pled guilty to falsely impersonating a federal official and travel fraud. Thereafter, the government filed a notice of sentencing enhancement under 18 U.S.C. § 3147 because defendant committed the instant offense while on bond. Defendant argued that the court should have notified him of the possibility of enhancement under 18 U.S.C. § 3147 and guideline § 2J1.7 before accepting his guilty plea. The Eleventh Circuit ruled that § 2J1.7 and § 3147 do not require notice to defendant of the sentencing enhancement before accepting the plea. Defendant had notice from the release bond for his prior conviction, the government’s notice seeking a sentencing enhancement, and the revised PSR. Defendant had the opportunity to object to the enhancement prior to sentencing. U.S. v. Bozza, 132 F.3d 659 (11th Cir. 1998).
11th Circuit rejects need for notice of court’s intent to exceed Chapter 7 sentencing range. (761) After revoking defendants’ supervised release, the district court imposed sentences that exceeded the ranges in Chapter 7 of the guidelines. The Eleventh Circuit held that a sentencing court is not required to give advance notice of its intent to exceed the Chapter 7 sentencing range. Since the Chapter 7 policy statements are not binding, exceeding the range is not a departure. Any recommendation of sentences to the district court should be made with the understanding that the court may impose any sentence within the statutory maximum. U.S. v. Hofierka, 83 F.3d 357 (11th Cir. 1996).
11th Circuit holds that PSR provided notice of alleged perjurious statements. (761) The district court refused to apply an obstruction of justice enhancement for defendant’s perjury at trial, suggesting that a defendant must receive advance written notice of the specific statements alleged to have been perjurious. The Eleventh Circuit declined to decide whether such notice was required, since even if it was, the PSR provided it. The PSR gave specific examples of defendant’s perjurious statements. The district court apparently agreed with the PSR, finding defendant was a liar and a very manipulative person. The district court incorrectly believed it lacked the power to enhance defendant’s sentence due to a lack of notice. U.S. v. Hatney, 80 F.3d 458 (11th Cir. 1996).
11th Circuit holds that failure to give Burns notice was plain error. (761) The government argued that the district court’s failure to give defendant prior notice of the grounds on which it departed upward, as required by Burns v. U.S., 501 U.S. 129 (1991), was merely technical. The 11th Circuit held that the failure to give Burns notice was plain error. The fact that defendant had the opportunity to respond orally to the enhanced sentence did not cure the violation. Rule 32 requires both an opportunity to comment upon the departure and reasonable notice of the contemplated decision to depart. The essential facts underlying the departure were in dispute, and even if they had not been not in dispute, defendant needed an opportunity to prepare legal and equitable arguments. Defendant was prejudiced by the failure to give him notice. U.S. v. Valentine, 21 F.3d 395 (11th Cir. 1994).