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The Champion

September 2008 , Page 55 

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Informal Opinion: Irizarry v. United States

By Mark P. Rankin

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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 court may depart from the a

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