More on Irizarry and notice requirements after Booker

Though lost in all the death penalty action, last Friday the Supreme Court granted cert on an important post-Booker issue in Irizarry v. United States (06-7517).  SCOTUSblog here provides the opinion below and the cert papers, and this is the question presented as set forth by the government’s brief in opposition:

Whether Federal Rule of Criminal Procedure 32 requires a district court to give the parties advance notice before imposing a sentence outside the applicable advisory Sentencing Guidelines range based on the criteria in 18 U.S.C. 3553(a), when the grounds for the non-Guidelines sentence are not identified in the presentence report or the parties’ prehearing submissions.

As regular readers know, this issue has sharply divided circuit courts and there are pretty sound arguments to be made on both sides of this issue in light of Booker‘s transformation of the guidelines from mandatory to advisory. 

Intriguingly, though, it seems that both the defendant here and the government believe that Rule 32 should be read to require a district court to give advance notice to the parties about possible grounds for imposing a non-guideline sentence.  Thus, it is unclear whether and how the Justices will get briefing in support of the position that no notice is required (though these arguments are pretty well developed in lower court opinions).

Some related posts on this issue in Irizarry:

• First Circuit says Rule 32(h) notice applies to variances
• Second Circuit jumps into Rule 32 split
• Third Circuit deepens split on variance notice issue
• Fifth Circuit brings breaks equipoise on post-Booker Rule 32(h) debate
• Sixth Circuit adds to split on Rule 32(h)
• Eleventh Circuit deepens Rule 32(h) circuit split