The Champion

September 2008 , Page 55 

Search the Champion Looking for something specific?

Preview of Member Only Content

For full access: login or Become a Member Join Now

Informal Opinion

By Mark P. Rankin

Read more 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

Want to read more?

The Champion archive is reserved for NACDL members.

NACDL members, please login to read the rest of this article.
login

Not a member? Join now.
Join Now
Or click here to see an overview of NACDL Member benefits.

See what NACDL members say about us.

To read the current issue of The Champion in its entirety, click here.

  • Media inquiries: Contact NACDL's Director of Public Affairs & Communications Ivan J. Dominguez at 202-465-7662 or idominguez@nacdl.org
  • Academic Requests: Full articles of The Champion Magazine are available for academic and research purposes in the WestLaw and LexisNexis databases.

In This Section

Advertisement Advertise with Us
ad