The Champion

March 2007 , Page 44 

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Surprise, Surprise: Is Proper Notice Still Required for an Above-Guidelines Sentence in Federal Court?

By Mark P. Rankin

Read more 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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