Irizarry v. United States--Summary of Decision

I stated in my presentation of this case that I was firmly "on the fence" as to how the Court would decide it. Indeed, the Court handed down a 5-4 decision (opinion by Stevens) that, in my judgment, actually muddies the water when they could have cleared it up. The purpose of this essay is to present a few facts of this case and then show that the major disagreement between the Justices related to whether the words "departure" and "variance" are of identical meaning. The majority said they were not; the minority said they were. The decision, as a result, injects unnecessary confusion into federal sentencing law, a confusion that may make life difficult for federal judges and attorneys practicing criminal law.

A Few Facts

"Petitioner pleaded guilty to making a threatening interstate communication to his ex-wife, in violation of federal law. Although the presentence report recommended a Federal Sentencing Guidelines range of 41-to-51 months in prison, the court imposed the statutory maximum sentence-60 months in prison and 3 years of supervised release-rejecting petitioner's objection that he was entitled to notice that the court was contemplating an upward departure. The Eleventh Circuit affirmed, reasoning that Federal Rule of Criminal Procedure 32(h), which states that “[b]efore the court may depart from the applicable sentencing range on a ground not identified ... either in the presentence report or in a party's pre-hearing submission, the court must give the parties reasonable notice that it is contemplating such a departure,” did not apply because the sentence was a variance, not a Guidelines departure."

The Supreme Court basically agreed with the 11th Circuit. It held that Rule 32(h) does not apply to a variance from a recommended Guidelines range. A sentence of 60 months when the recommended guideline level was 41-51 months constituted a "variance" in the mind of the Court. Since Rule 32(h) only applied to "departures," it didn't talk about a "variance." But the dissenting four Justices were confused by the distinction. Here is what they say:

"The Court creates a legal distinction without much of a difference. 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.”

If I sat on a "super-Court" at this moment, I would have asked both sides to stop, and come to a conclusion about the difference, if any, between a variance and a departure. It would seem to follow pretty quickly that if the rule (32(h)) used the word "departure" and that a "variance" is not a departure, then Rule 32(h) of course wouldn't control this case. But, then again, if a "departure" in Rule 32(h) is really the same thing as a "variance," then they are the same thing and one can't so quickly dismiss the scope of Rule 32(h). Because of this logomachy, it is not of very much use to review the arguments in any detail. I will simply summarize the majority's argument, and leave it there. The ultimate result of the case, however, is that Mr. Irizarry, who sounds like a pretty mean guy, especially towards his "ex" and her new family, gets 60 months in prison rather than the "guildeline" range of 41-51 months.

Here is how the Court reasoned:

"Rule 32(h) does not apply to a variance from a recommended Guidelines range. At the time that Burns v. United States, 501 U.S. 129, 111 S.Ct. 2182, 115 L.Ed.2d 123, was decided, prompting Rule 32(h)'s promulgation, the Guidelines were mandatory; the Sentencing Reform Act of 1984 prohibited district courts from disregarding most of the Guidelines' “mechanical dictates,” id., at 133, 111 S.Ct. 2182. Confronted with the constitutional problems that might otherwise arise, the Burns Court held that the Rule 32 provision allowing parties to comment on the appropriate sentence-now Rule 32(i)(1)(C)-would be “render[ed] meaningless” unless the defendant were given notice of a contemplated departure. Id. at 135-136, 111 S.Ct. 2182. Any constitutionally protected expectation that a defendant will receive a sentence within the presumptively applicable Guidelines range did not, however, survive United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621, which invalidated the Guidelines' mandatory features. Faced with advisory Guidelines, neither the Government nor the defendant may place the same degree of reliance on the type of “expectancy” that gave rise to a special need for notice in Burns. Indeed, a sentence outside the Guidelines carries no presumption of unreasonableness. Gall v. United States, 552 U.S. ----, ----, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Thus, the due process concerns motivating the Court to require notice in a mandatory Guidelines world no longer provide a basis for extending the Burns rule either through an interpretation of Rule 32(h) itself or through Rule 32(i)(C)(1). Nor does the rule apply to 18 U.S.C. § 3553 variances by its terms. Although the Guidelines, as the “starting point and the initial benchmark,” continue to play a role in the sentencing determination, see Gall, 552 U.S., at ----, 128 S.Ct. 586, there is no longer a limit comparable to the one in Burns on variances from Guidelines ranges that a district court may find justified. This Court is confident that district judges and counsel have the ability-especially in light of Rule 32's other procedural protections-to make sure that all relevant matters relating to a sentencing decision have been considered before a final determination is made."

In other words, Booker rules. Booker declared the sentencing guidelines to be optional rather than mandatory. It would seem that the Court just needed to go down that road, without creating the unnecessary confusion with its talk of variances and departures--terms that I never saw it adequately explain. That, then, is my conclusion--Booker rules! Just remember that...

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