Irizarry plead guilty to threatening his wife in violation of 18 U.S.C. section 875(c). The district court issued a sentence six months longer than the range recommended in the sentencing guidelines because of the likelihood that Irizarry would continue to threaten his wife, a statutory sentencing factor that recommends a higher sentence. 18 U.S.C. section 3553(a)(2)(C). Irizarry appealed, arguing that the district court violated Rule 32(h) of the Federal Rules of Criminal Procedure by not giving advance notice that it was considering a ground for departure from the guidelines range not identified in the presentence report or a prehearing government submission.
The Eleventh Circuit Court of Appeals affirmed the sentence. Rule 32(h) codified the Supreme Court’s statement in Burns that “before a district court can depart upward on a ground not identified as a ground for upward departure either in the presentence report or in a prehearing submission by the Government, Rule 32 requires that the district court give the parties reasonable notice that it is contemplating such a ruling.” The Eleventh Circuit concluded that the above-guidelines sentence imposed by the district court was a variance justified by the defendant's future dangerousness from the public based on 18 U.S.C. section 3553(a), and that the district court validly exercised its post-Booker discretion to impose a reasonable sentence outside the sentencing guidelines range. The Eleventh Circuit also concluded that Rule 32(h) did not apply to such variances. After Booker, defendants are on notice that the sentencing guidelines range is advisory and that the district court must consider the factors expressly set out in section 3553(a) when selecting a reasonable sentence.
Whether Federal Rule of Criminal Procedure 32(h), and the holding in Burns v. United States, 501 U.S. 129 (1991) requiring a court to provide reasonable notice to the parties that it is contemplating a departure from the applicable sentencing guideline range on a ground not identified for departure either in the presentence report or in a party’s prehearing submission, has any continuing application in light of United States v. Booker, 543 U.S. 220 (2005).