U.S. v. Fleming

Full title: UNITED STATES OF AMERICA, Plaintiff, v. NANCY FLEMING, Defendant

Court: United States District Court, D. Colorado

Date published: Aug 30, 2011

Criminal Action No. 11-cr-240-JLK (D. Colo. Aug. 30, 2011)

Opinion

Criminal Action No. 11-cr-240-JLK.

August 30, 2011

ORDER

JOHN KANE, District Judge

The hearing on Defendant's supervised release violation was originally set for August 24, 2011. At that hearing, I ordered Defendant's supervised release revoked, and sentenced Defendant to three years' incarceration on the violations before me. On defense counsel's objection for lack of notice of my intent to vary upward from the Probation Department's recommended sentence, I CONTINUED the hearing to September 9, 2011. I issue the instant Order (1) to notify counsel of my intentions with regard to the September 9^th hearing; and (2) to clarify that while this notice is not required under Fed.R.Crim.P. 32(h), it is warranted so that the Defendant and the Government have an "adequate opportunity to confront and debate the relevant issues." Irizarry v. U.S., 553 U.S. 708, 710-16 (2008).

Rule 32(h) extends only to non-Guideline sentences imposed under the USSG framework.

In Irizarry v. United States, 553 U.S. 708, 713-16 (2008), the Supreme Court declined to extend the notice provisions of Rule 32(h) to "every sentence that is a variance from the Federal Sentencing Guidelines range. . . ." Because "`[d]eparture' is a term of art under the Guidelines and refers only to non-Guidelines sentences imposed under the framework set out in the Guidelines," the Court concluded that Rule 32(h), "by its terms," "does not apply to § 3553 variances." Id. at 714. As the Supreme Court explained, Congress enacted Rule 32(h) in response to its previous decision in Burns v. United States, 501 U.S. 129, 138-39 (1991), where the Court interpreted Rule 32 to require advance notice of a district court's intention to depart upward based on a ground not identified in the PSR or previously advocated by the Government. Burns, however, came from an era of mandatory Sentencing Guidelines which "prohibited district courts from disregarding `the mechanical dictates of the Guidelines' except in narrowly defined circumstances." Irizarry, 553 U.S. at 713 (quoting Burns, 501 U.S. at 133). The Court's subsequent decision in Booker "invalidated the mandatory features of the Guidelines," and therefore lessened whatever expectation a criminal defendant previously had in receiving a "sentence within the presumptively applicable guideline range." Id. at 713-14 (citation omitted). "Now faced with advisory Guidelines, neither the Government nor the defendant may place the same degree of reliance on the type of `expectancy' that gave rise to a special need for notice in Burns." Id.

Nevertheless, the Court in Irizarry recognized the problem of unfair surprise at sentencing, but fashioned a pragmatic, rather than categorical, solution. See U.S. v. Redmond, 388 Fed.Appx. 849, 855-856, 2010 WL 2881515, 7 (10^th Cir. 2010) (providing a helpful, if unpublished, discussion of Irizarry).

Sound practice dictates that judges in all cases should make sure that the information provided to the parties in advance of the hearing, and in the hearing itself, has given them an adequate opportunity to confront and debate the relevant issues. We recognize that there will be some cases in which the factual basis for a particular sentence will come as a surprise to a defendant or the Government. The more appropriate response to such a problem is not to extend the reach of Rule 32(h)'s notice requirement categorically, but rather for a district judge to consider granting a continuance when a party has a legitimate basis for claiming that the surprise was prejudicial.

Irizarry, 553 U.S. at 715. It is for this reason that the August 24, 2011 hearing was continued.

Notice under Irizarry.

As an initial matter, I notify both parties that I intend to revisit the sentence imposed at the August 24 hearing entirely and may vacate, alter, or amend the three-year sentence imposed. Under Irizarry, I notify Defendant of my intent to vary upward from the sentence recommended by the Probation Department for a period of incarceration as long as 2-3 years under 18 U.S.C. § 3583(e). I expect to hear from both sides on the issue. Counsel may submit written sentencing statements to the court by 4 p.m. Thursday, September 8, 2011, or proceed orally at the rescheduled hearing.