First Circuit says Rule 32(h) notice applies to variances

As I noted here a few months ago, the federal circuits have been nearly evenly split on whether FRCrP 32(h) requires a district court to give advance notice before varying from the advisory guidelines range.  Thanks to this post at AL&P, I see that the First Circuit has weighed in today through US v. Vega-Santiago, No. 06-1558 (1st Cir. Oct. 31, 2007) (available here).  Helpfully, this opinion provides this effective account of the state of Rule 32(h) after Booker in the course of articulating the First Circuit’s approach:

It appears that only the Seventh Circuit has held that Rule 32 no longer requires notice even for departures, having concluded that, after Booker, “the concept of departures [is] ‘obsolete’ and ‘beside the point.'” United States v. Walker, 447 F.3d 999, 1006 (7th Cir. 2006).  Rule 32(h) remains in effect, however, and the government has in other cases accepted its continuing applicability….

The remaining nine circuits that have thus far addressed the issue have considered whether Rule 32(h) extends to sentencing variances, as well as departures, and they have split five to four.  The Third, Fifth, Eighth and Eleventh circuits hold that the Rule is limited to departures; the Second, Fourth, Sixth, Ninth and Tenth hold that it is not, and have applied the notice requirement to variances as well as departures.  For the reasons we elaborate below, we think the better view is that the notice requirement survives Booker and applies to any non-Guidelines sentence – whether imposed as a departure or as a variance.