Third Circuit deepens split on variance notice issue
Deepening one (of many) post-Booker circuit splits, the Third Circuit today wades into the interesting issue of whether Rule 32(h) of the Federal Rules of Criminal Procedure should be understood to require a district court to give advance notice of its intent to vary from the guidelines. As detailed in some posts linked below, a few circuits to consider the issue directly have concluded that Rule 32(h) still requires notice in this crazy, mixed-up, post-Booker variance world. But, in US v. Banks, No. 05-1715 (3d Cir. June 20, 2006) (available here), the Third Circuit has a different (and more nuanced?) view. Here are a few highlights from an interesting decision (with cites removed):
Rule 32(h) was adopted at a time when courts could only avoid a Guidelines range by departing from the Guidelines. However, the Supreme Court made clear in Booker that the Guidelines are now advisory. Thus, district courts, post-Booker, exercise broad discretion in imposing sentences, so long as they begin with a properly calculated Guidelines range, fully consider the broad range of factors set forth in 18 U.S.C. § 3553(a), and all grounds properly advanced by the parties at sentencing. Thus, district courts continue to consider all grounds properly advanced by the parties at sentencing, as they did in the past, and they continue to consider the Guidelines range, which is now advisory. What has changed post-Booker, is that sentencing is a discretionary exercise, and now includes a review of the factors set forth in § 3553(a). These factors are known prior to sentencing…. Accordingly, given that defendants are aware that courts will consider the broad range of factors set forth in § 3553(a) at sentencing, we perceive none of the “unfair surprise” considerations that motivated the enactment of Rule 32(h).
Furthermore, the requirement of Rule 32(h) that the court specify “any ground” of contemplated departure from the Guidelines range was designed for pre-Booker departures, which were constrained by the provisions of the Guidelines pertaining to departures. The Guidelines have now become advisory and they no longer limit the grounds a court can consider at sentencing. Thus, the Guidelines are now only one factor among many which can influence a discretionary sentence. Application of the advance notice requirement of Rule 32(h) to discretionary sentence would elevate the advisory sentencing range to a position of importance that it no longer can enjoy.
Booker contemplates that the district court will impose a discretionary sentence after consideration of the advisory Guidelines, the grounds raised by counsel, the defendant’s allocution, victim statements, other evidence, and the factors set forth in § 3553(a). Booker does not contemplate that the court will somehow arrive at its sentence prior to sentencing, and requiring advance notice of “any ground” beyond the factors set forth in § 3553(a) would undoubtedly prove to be unworkable.
Related posts on post-Booker Rule 32(h) issue: