Fifth Circuit brings breaks equipoise on post-Booker Rule 32(h) debate

Federal sentencing fans know that, since Booker, the circuits have been deeply split over wither the notice provision of F.R. Cr. P. 32(h) for sua sponte upward departures does or does not apply to Booker variances.  Late last week, the Fifth Circuit weighed in through its opinion in US v. Mejia-Huerta, No. 05-11391 (5th Cir. Feb. 28, 2007) (available here). This paragraph usefully summarizes the split and the Fifth Circuit’s ruling:

Since Booker, an incongruent pattern of caselaw has developed among those federal circuits that have considered whether Burns or Rule 32(h) continue to apply to non-Guidelines sentences.  The Third, Seventh, and Eighth Circuits have answered in the negative; the Second, Fourth, Ninth, and Tenth Circuits have answered in the affirmative.  In an unpublished and thus non-binding opinion, we have previously determined that a sentencing court’s failure to provide notice of its intention to impose a non-Guidelines sentence post-Booker does not constitute plain error, but we have expressly declined to rule on whether such failure constitutes error. We now enter the fray, agreeing with the bare minority among the circuits that have addressed the issue and thereby bringing the circuit split on this issue into equipoise.

Ahh… equipoise, what a blistful post-Booker state.  Let’s see how long this lasts.

UPDATE:  A helpful reader confirmed my nagging suspicion that the Fifth Circuit’s Rule 32(h) head-count was off:

Alas, the Fifth Circuit decision breaks equipose. The Fifth Circuit didn’t notice that the Eleventh Circuit has already answered in the negative.  See United States v. Irizarry, 458 F.3d 1208 (11th Cir. 2006).