Irizarry v US

This case explores the continuing validity of a technical rule in the Federal Rules of Criminal Procedure ("FRCP") after the 2005 US Supreme Court Case, US v. Booker (543 US 220). The problem can be stated as follows: On the one hand, FRCP 32(h) provides that a judge must give advance notice to the defendant if the court is considering a departure from the recommended sentence of the presentencing report. On the other hand, the Booker decision seemingly gives the judge unlimited authority (it must be a "reasonable" decision) to sentence a convicted criminal defendant to any length of prison time, up to and including the statutory maximum. The Booker decision said nothing about the judge giving advanced notice for any sentencing decision s/he makes.

Presenting the Issue in More Detail

More specifically, the language of FRCP 32(h) is as follows:

"Before the court may depart from the applicable sentencing range on a ground not identified for departure either in the presentence report or in a party's prehearing submission, the court must give the parties reasonable notice that it is contemplating such a departure. The notice must specify any ground on which the court is contemplating a departure," FRCP 32(h).

This rule wasn't given to Moses on Sinai; it was enacted by Congress after the Supreme Court's decision in Burns v. United States (501 US 129 (1991)). Indeed, the bolded language of the statute reflects the Court's words faithfully. The Court required this kind of notice because a departure from the sentencing guidelines, either upward or downward, could catch either side by surprise, and our system of justice is predicated on the notion that such "surprises" should be limited by the adversary process.

So, the rule is clear. But then, as so often is the case, law makes the clear unclear. Ever since 2000, the Court has been wrestling with the applicability of the federal sentencing guidelines to particular cases. Normally the "guideline range" for any crime is a number derived from a composite or variety of circumstances. For example, in the case at bar, Irizarry had threatened his ex-wife, her mother and his ex-wife's new husband with death through numerous emails. He also engaged in several threatening acts, such as making trips across the country seemingly to stalk the family, etc. This conduct led to a "total offense level." Yet, that level could be, and was "enhanced" by a number of factors. Here, the pre-sentence investigation report recommended two, two-level sentence enhancements because Irizarry violated a court protection order and issued more than two threats. It also recommended a six-level enhancement because the offense involved "conduct evidencing an intent to carry out such threat" (language from the United States Sentencing Guidelines sec. 2A6.1(b)(1)-(3)).

When you put this all together, the advisory guideline range for his offenses ranged from 41 to 51 months in prison. Yet the judge, without a Rule 32(h) notice, sentenced the defendant to the maximum statutory penalty--60 months. He concluded that the Booker case in 2005 allowed him to ignore Rule 32(h). [As you see, the "guideline" levels almost always fall below the statutory maximum and, indeed, cannot exceed it.] Here were the judge's exact words:

"I've considered all of the evidence presented today, I've considered everything that's in the presentence report, and I've considered the statutory purpose of sentencing and the sentencing guideline range. I find the guideline range is not appropriate in this case. I find Mr. Irizarry's conduct most disturbing. 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. 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.

The guideline range goes up to 51 months, which is only nine months shorter than the statutory maximum. But I think in Mr. Irizarry's case the statutory maximum is what's appropriate, and that's what I'm going to sentence him."

Now, whenever a federal judge feels s/he can ignore the specific language of a federal law (in this case FRCP 32(h)), you know that something is "up." Something, indeed, is "up" on sentencing issues. Since 2000 the Court has been "tinkering with" the concept of a sentencing guideline range. In two cases, culminating in Booker, the Court decided that the "guidelines" were indeed only guidelines. Thus, a judge was free to depart upward or downward from the guidelines. The question before the Court is whether the judge's authority to do that is still constrained by Rule 32(h).

The Arguments Pro and Con

Here is how the arguments go--and the reason why the Circuit Courts are divided. On the one hand one could argue that the conclusion of Booker only meant that the guidelines remained advisory but that one still had an obligation to be clear and straightforward with each other--and that if an actual sentence was being contemplated outside of the guideline range, one ought to have not just the courtesy but the requirement for advanced notice to both sides. On the other hand, one might say that the "meaning" of Booker is that all bets are off, so to speak, and that any kind of pre-sentencing report is so advisory that a departure from its recommendations should occasion not real problem--i.e., it is well within the province of the Court to do so.

Thus, the issue in this case will be how rigidly the Court will read Booker. Before Booker we were in the regime of "strict rules" on sentencing, even though there were guidelines in place. Now, after Booker, are we in the era of "no rules" except for the statutory maximums? If the latter is generally the case, then there need be no advance notice to either side of what a judge might contemplate. If, however, the Court still considers that we are in a "rule-based" regime, it might hold that advance notice according to Rule 32(h) is required.

I think the issue is a tricky one, precisely because arguments for both sides are so eminently reasonable. One side argues: 'What is the harm in requiring advanced notice of possible departure? Justice is better served and it really isn't an inconvenience to the system.' The other side argues: 'If advisory guidelines are only advisory, then the judge ultimately has the authority to impose the sentence s/he feels is proper. After all, why else do you have judges except to give their "judgment"?' I will sit firmly on the fence on this one...

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