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By Mark P. Rankin
Informal Opinion columns.
Irizarry v. United States
There is no question that Federal Rule of Criminal Procedure 32(h)
requires prior notice before a court may impose an upward departure
according to the U.S. Sentencing Guidelines. Booker1 not only
permanently altered the sentencing landscape but also added a new phrase
to our sentencing vocabulary — “upward variance,” meaning an
above-Guidelines sentence based not upon the departure provisions of
Chapter Five, but rather based upon the factors set forth at 18 U.S.C. §
3553(a). In March 2007, I wrote in The Champion that Rule 32(h) may or
may not require a court to provide the defendant with notice before
imposing an upward variance.2 A little over a year later, in United States v. Irizarry,3 the Supreme Court weighed in and provided a definitive answer: No.
Leading up to Irizarry, there was a clear circuit split on whether a
court must provide advanced notice to a defendant before imposing an
upward variance. Rule 32(h) states:
Before a co
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