Irizarry v. United States

PETITIONER: Richard Irizarry
RESPONDENT: United States
LOCATION: U.S. Naval Base at Guantanamo Bay

DOCKET NO.: 06-7517
DECIDED BY: Roberts Court (2006-2009)
LOWER COURT: United States Court of Appeals for the Eleventh Circuit

CITATION: 553 US 708 (2008)
GRANTED: Jan 04, 2008
ARGUED: Apr 15, 2008
DECIDED: Jun 12, 2008

Arthur J. Madden, III - on behalf of Petitioner
Matthew D. Roberts - on behalf of the Respondent
Peter B. Rutledge - for amicus curiae, in support of the Judgment below

Facts of the case

In 2004, Richard Irizarry pleaded guilty to threatening his ex-wife. The district court sentenced Irizarry to five years, the maximum sentence allowed by law. The court imposed this sentence, which is six months longer than the sentence prescribed by the Federal Sentencing Guidelines, because it felt Irizarry was likely to continue to threaten his ex-wife.

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 not identified in the presentence report or a prehearing government submission. The U.S. Court of Appeals for the Eleventh Circuit rejected this claim, stating that the Supreme Court's 2005 decision in U.S. v. Booker had made the guidelines advisory as opposed to mandatory. In imposing a harsher sentence than that suggested by the federal guidelines, the Eleventh Circuit reasoned, the district judge had merely varied the federal rules, not departed from them.


Is a judge required to give both parties advance notice before imposing a criminal sentence that departs from the Federal Sentencing Guidelines?

Media for Irizarry v. United States

Audio Transcription for Oral Argument - April 15, 2008 in Irizarry v. United States

Audio Transcription for Opinion Announcement - June 12, 2008 in Irizarry v. United States

John Paul Stevens:

This case comes to us from the United States Court of Appeals for the Eleventh Circuit.

We are asked to determine whether Rule 32(h) of the Federal Rules of Criminal Procedure requiring notice when a district judge imposes a sentence that departs from the recommended Federal Guidelines range applies even when the District Judge imposes a non-Guideline sentence not as a departure governed by the rules found in the Guidelines but rather has a variance from the non-advisory Guidelines.

Petitioner pleaded guilty to one count of making a threatening interstate communication.

The pre-sentence report prepared by the probation office recommended a Guideline sentence at a range of from 41 to 51 months of imprisonment.

At the sentencing hearing, the District Judge explained why she had concluded that the Guidelines range would not provide an appropriate sentence and actually sentenced the petitioner to the statutory maximum the 60 months and upward variance of nine months.

Defense counsel objected to the sentence on the ground that the judge had not given notice that she was contemplating a sentence higher than the Guidelines range.

The Eleventh Circuit affirmed petitioner's sentence.

We granted certiorari because the Court of Appeals are divided with respect to Rule 32(h) applies to variances.

Rule 32(h) was promulgated in response to our 5-to-4 decision in 1991 in United States against Burns.

By interpreting the earlier version of Rule 32 to require notice of contemplated departures, we avoided answering the constitutional question whether such notice would be required by the Due Process Clause.

Because the Guidelines range are now advisory, the concerns that motivated the majority in Burns do not provide a sufficient basis for extending Rule 32(h) to cover variances from the Guidelines range.

We therefore affirm the judgment of the Court of Appeals.

Justice Thomas has filed a concurring opinion.

Justice Breyer has filed a dissenting opinion in which Justices Kennedy, Souter, Ginsburg have joined.