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Criminal Procedure - Federal Sentencing Guidelines - Third Circuit Deepens Split over Notice Requirement for Non-Guidelines Sentences

Article excerpt

CRIMINAL PROCEDURE--FEDERAL SENTENCING GUIDELINES--THIRD CIRCUIT DEEPENS SPLIT OVER NOTICE REQUIREMENT FOR NON-GUIDELINES SENTENCES.--United States v. Vampire Nation, 451 F.3d 189 (3d Cir.), cert. denied, 127 S. Ct. 424, reh'g denied, 127 S. Ct. 761 (2006).

The Supreme Court's holding in United States v. Booker (1) that rendered the Federal Sentencing Guidelines advisory has generated several challenging questions in the lower courts. One issue that has divided those courts is the continuing applicability of Federal Rule of Criminal Procedure 32(h), which requires a sentencing court to provide advance notice of any ground on which it is considering departing from the sentencing range prescribed by the Guidelines. (2) Recently, in United States v. Vampire Nation, (3) the Third Circuit weighed in on the debate, holding that the district court did not err by imposing a sentence three months higher than the advisory Guidelines range without providing advance notice. This holding is inconsistent with Supreme Court precedent. Furthermore, resolving the circuit split (4) in favor of the notice requirement would help to maintain the relevance and utility of the advisory Guidelines by making sentences more predictable and thus more susceptible to adversary testing, all without overstepping constitutional bounds.

Frederick Banks was convicted of mail fraud, copyright infringement, money laundering, uttering and possessing counterfeit or forged securities, and witness tampering. (5) The district court sentenced him on February 25, 2005, just over a month after the decision in Booker. (6) The advisory Guidelines recommended a sentence of forty-six to fifty-seven months' imprisonment, but the district court, after considering both the Guidelines range and the sentencing factors set forth in 18 U.S.C. [section] 3553(a), (7) sentenced Banks to sixty months in prison. (8) Banks appealed, (9) arguing that Rule 32(h) entitled him to advance notice of the court's intent to impose a sentence outside the advisory Guidelines range (a non-Guidelines sentence). (10)

The Third Circuit affirmed. Writing for a unanimous panel, Judge Van Antwerpen (11) held that Banks's sentence was procedurally sound because the notice requirement of Rule 32(h) did not apply to non-Guidelines sentences imposed pursuant to the court's post-Booker sentencing discretion. (12) Judge Van Antwerpen relied, first, on an interpretation of Rule 32(h) imported from the Eighth Circuit, construing the term "departure" in the Rule to mean only an adjustment of the sort expressly permitted under the Guidelines. (13) This concept of departure reflected the fact that before Booker, a district court could impose a sentence outside the Guidelines range only pursuant to a specific finding of "an aggravating or mitigating circumstance ... not adequately taken into consideration by the Sentencing Commission." (14) After Booker, however, a district court is free to impose a non-Guidelines sentence without making any specific findings, subject only to the broad sentencing objectives outlined in [section] 3553(a). (15) The Eighth Circuit has declared that a district court's decision to sentence a defendant outside the Guidelines range after considering all the [section] 3553(a) factors is a "variance," not a departure. (16) Adopting this terminology and the underlying conceptual distinction, Judge Van Antwerpen concluded that the notice requirement should continue to apply to "departures from the advisory Guidelines range," but should not apply to "variances ... based on the [c]ourt's discretion under Booker." (17)

To bolster this construction, Judge Van Antwerpen explained that the reasons underlying the adoption of Rule 32(h) did not apply to post-Booker discretionary variances. He began by acknowledging (18) that Rule 32(h) was a codification of the Supreme Court's decision in Burns v. United States. (19) In Burns, a case decided while the Guidelines were mandatory, the Court addressed the meaning of what was then Rule 32(a), (20) which directed a sentencing court to afford the parties "an opportunity to comment upon . …