Notable Tenth Circuit opinion on post-Booker notice

Late yesterday, the Tenth Circuit issued a potentially important decision in US v. Dozier, No. 05-6259 (10th Cir. Apr. 5, 2006) (available here), addressing post-Booker notice issues.  Though some terminology used in Dozier is not perfectly accurate (e.g., some downward adjustments are called departures), the decision suggests that Booker did not change any key notice rights for the imposition of non-guideline sentences.  Here is the key holding of Dozier:

[W]e hold today that Rule 32(h) survives Booker and requires a court to notify both parties of any intention to depart from the advisory sentencing guidelines as well as the basis for such a departure when the ground is not identified in the presentence report or in a party’s prehearing submission.

Though articulated in departure terms, the spirit of the Dozier opinion suggests that the Tenth Circuit means these notice rules would also apply to so-called Booker variances.