CA1: en banc court holds that 32(h) notice at sentencing is required sometimes based on vague yet easy-to-understand standard

US v. Vega-Santiago,  06-1558 (en banc).  Panel Decision here.  Our coverage here.  The First granted rehearing to determine whether  “the district judge must provide "notice" to litigants before imposing a sentence outside the guideline range--a requirement that the panel found satisfied in this case.”  The First says that notice is required under Federal Rule of Criminal Procedure 32(h)“when proposing to adopt a variant sentence relying on some ground or factor that would unfairly surprise competent and reasonably prepared counsel, a judge must either provide advance notice or, on request, grant a continuance in order to accommodate a reasonable desire for more evidence or further research.”  Oh, great. a non-decision.  Unfair surprise is unfair surprise.

See, the First says that 32(h) codified Burns v. United States, 501 U.S. 129 (1991), and since Booker is a judicial creation, Burns shouldn’t be automatically applied to variances.  Moreover, in post-Booker sentencing, the process is a lot more “fluid” than before, but competent counsel should be able to tell when a variance is at issue.  So, there won’t be too many issues of unfair surprise.  Moreover, in this case, any additional mitigating evidence would have been relevant regardless of this variance.  (I think the First might be missing the fact that if a variance is on the table, different strategic concerns come into play.)

If you list Klingon as a second language on your resume, you can read on.
 

Alas, the First admits that the Supreme Court is likely to decide the issue in United States v. Irizarry, 458 F.3d 1208, 1212 (11th Cir. 2006), cert. granted, 2008 U.S. LEXIS 409 (Jan. 4, 2008) (No. 06-7517).

Torruella “reserves and dissents” and writes that the First has a “whimsical and uneven manner in which this circuit often applies the rehearing rules.”  He accuses of the court of undertaking review sua sponte and therefore, “The appeal thus metamorphosed into one more relevant to, and reflective of, a judicially fueled agenda” because both the government and the defendant agree that Rule 32(h) applies to post-Booker variances.

On the merits, Torruella accuses the First of unauthorized rule-making (i.e. trying to change 32(h)), and notes that “competent and reasonably prepared counsel” is vague and ascertaining this will waste more time.

Lipez dissents and says that the court isn’t really offering any guidance, anyway and a bright line rule would be better.   I agree.  Moreover, “reasonable notice” means “notice” “ in advance.”

SL&P comments here.