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Surprise, Surprise: Is Proper Notice Still Required for an Above-Guidelines Sentence in Federal Court?
By Mark P. Rankin
Grid & Bear It columns.
“Surprises are foolish things. The pleasure is not enhanced, and the inconvenience is often considerable.”
— Jane Austen
Representing the accused in federal court can, to say the least, be a
harrowing experience. Defendants are entitled to little discovery under
the Federal Rules of Criminal Procedure. Thus, despite counsel’s best
investigation, the evidence one faces at trial and sentencing can too
often be a surprise. In the recent past, a defendant could count on at
least one certainty at sentencing — the court could not, without prior
notice, sentence a defendant to more prison time than authorized by the
U.S. Sentencing Guidelines. In other words, there could be no sua sponte
upward departures.1 As explained herein, after the Supreme
Court’s landmark decision in United States v. Booker, 543 U.S. 220
(2005), counsel can no longer necessarily count on such certainty at
sentencing in federal court.
This article provides a brief overview of the (potential
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