Irizarry v. U.S.

The Supreme Court has agreed to decide whether a judge must give both sides advance notice before imposing a criminal sentence that departs from the Federal Sentencing Guidelines.

The issue has rankled the lower appellate courts since a 2005 case in which the justices made the guidelines advisory.

In this particular case, a California man who pleaded guilty in 2004 to threatening his ex-wife argued that the sentence imposed by the federal judge was invalid because the judge did not notify him that she was considering a longer sentence.

In 2000, Richard Irizarry’s wife moved from California to South Carolina and filed for divorce, claiming spousal abuse. Over the next few years, court records show that Irizarry followed his ex-wife and sent her nearly 300 threatening e-mail messages along the way. When police arrested Irizarry in December 2003, they found maps of her neighborhood in his car and other information suggesting he planned to track down his former wife.

A judge on the U.S. District Court for the Southern District of Alabama sentenced Irizarry to five years, the maximum prison term allowed by law. The sentence was six months longer than the advisory guidelines range because of the likelihood defendant would continue to threaten his ex-wife.

“I am sincerely convinced that he will continue, as his ex-wife testified, in this conduct regardless of what this Court does and regardless of what kind of supervision he’s under,” wrote district judge Ginny Granade. “And based upon that, I find that the maximum time that he can be incapacitated is what is best for society, and therefore the guideline range, I think, is not high enough.”

Irizarry appealed, arguing that the district court violated Rule 32(h) of the Federal Rules of Criminal Procedure by not giving advance notice that it was considering a ground for departure not identified in the presentence report or a prehearing government submission. The district court concluded that Rule 32(h) was not applicable under the circumstances.

The U.S. Circuit Court of Appeals for the 11th Circuit affirmed the lower court’s decision, ruling in August 2006 that the notification standard no longer applied as a result of a 2005 Supreme Court decision, U.S. v. Booker, which made the guidelines advisory.

In technical terms, Granade’s sentence was a “variance” from the guidelines, not a “guidelines departure,” according to the Atlanta-based 11th Circuit.

“After concluding that the guidelines range did not adequately address the future risk defendant posed to the public, the court exercised its post-Booker discretion to impose a reasonable sentence outside the sentencing guidelines range,” the appeals court held.

On Jan. 4, 2008, the Supreme Court agreed to hear the case. Oral arguments are expected in the spring.

criminal procedure, Sentencing Guidelines, presentence report

The Supreme Court ruled that a district court judge does not need to give both sides advance notice before imposing a criminal sentence that departs from the Federal Sentencing Guidelines.

The issue has rankled the lower appellate courts since a 2005 case in which the justices made the guidelines advisory.

In this particular case, a California man who pleaded guilty in 2004 to threatening his ex-wife argued that the sentence imposed by the federal judge was invalid because the judge did not notify him that she was considering a longer sentence.

In 2000, Richard Irizarry’s wife moved from California to South Carolina and filed for divorce, claiming spousal abuse. Over the next few years, court records show that Irizarry followed his ex-wife and sent her nearly 300 threatening e-mail messages along the way. When police arrested Irizarry in December 2003, they found maps of her neighborhood in his car and other information suggesting he planned to track down his former wife.

A judge on the U.S. District Court for the Southern District of Alabama sentenced Irizarry to five years, the maximum prison term allowed by law. The sentence was six months longer than the advisory guidelines range because of the likelihood that the defendant would continue to threaten his ex-wife.

“I am sincerely convinced that he will continue, as his ex-wife testified, in this conduct regardless of what this Court does and regardless of what kind of supervision he’s under,” wrote district judge Ginny Granade. “And based upon that, I find that the maximum time that he can be incapacitated is what is best for society, and therefore the guideline range, I think, is not high enough.”

Irizarry appealed, arguing that the district court violated Rule 32(h) of the Federal Rules of Criminal Procedure by not giving advance notice that it was considering a ground for departure not identified in the presentence report or a prehearing government submission. The district court concluded that Rule 32(h) was not applicable under the circumstances.

The U.S. Circuit Court of Appeals for the 11th Circuit affirmed the lower court’s decision, ruling in August 2006 that the notification standard no longer applied as a result of a 2005 Supreme Court decision, U.S. v. Booker, which made the guidelines advisory.

In technical terms, Granade’s sentence was a “variance” from the guidelines, not a “guidelines departure,” according to the Atlanta-based 11th Circuit.

“After concluding that the guidelines range did not adequately address the future risk defendant posed to the public, the court exercised its post-Booker discretion to impose a reasonable sentence outside the sentencing guidelines range,” the appeals court held.

On June 12, a divided Supreme Court affirmed the appeals court ruling.

“‘Departure” is a term of art under the Guidelines and refers only to non-Guidelines sentences imposed under the framework set out in the Guidelines,” Justice John Paul Stevens wrote for the 5-4 majority. “Although the Guidelines, as the ‘starting point and the initial benchmark,’ continue to play a role in the sentencing determination, there is no longer a limit comparable to the one at issue in Burns on the variances from Guidelines ranges that a District Court may find justified under the sentencing factors set forth in 18 U. S. C. §3553(a).”

Justice Stephen G. Breyer dissented, joined by Justices Anthony M. Kennedy, David H. Souter and Ruth Bader Ginsburg.

"The Court creates a legal distinction without much of a difference," Breyer asserted. "The Rule speaks specifically of 'departure[s],'but I see no reason why that term should not be read to encompass what the Court calls §3553(a) 'variances.'”