Will Irizarry finally explain the true nature of the post-Booker world?
I have mentioned before that I think the sleeper SCOTUS sentencing case this term in Irizarry, which technically addresses a seemingly little issue concerning notice for imposing sentences outside the guidelines. However, as revealed in the amicus brief supporting the Eleventh Circuit’s ruling below (to which I contributed), the case presents an opportunity for the Justices to address more broadly the nature and status of departures and variances in the post-Booker world. This amicus brief can be downloaded below, and here is the start of the summary of argument which highlights the deep conceptual issues that the Justices might have to address in Irizarry:
Federal Rule of Criminal Procedure 32 does not require a district court to provide notice prior to imposing a sentence outside the range recommended by the advisory Guidelines based on the factors set forth in 18 U.S.C. § 3553(a). Neither provision of Rule 32 relied upon by Petitioner — Rule 32(h) or Rule 32(i)(1)(C) — supports a notice requirement in this context.
Petitioner’s reading of Rule 32(h) cannot be squared with the rule’s plain language, with speaks repeatedly and exclusively in terms of departures. Departures and variances are fundamentally different sentencing devices: departures depend on facts not adequately taken into account by the Sentencing Commission; variances depend on reasoned judgments based on the considerations set forth in Section 3553(a) by Congress. In light of the fundamental distinction between a departure and a variance, the notice rule for departures has never been, and should not now be, extended to variances.