Federal Rule of Criminal Procedure 32(h): R.I.P.
October 2008

Near the end of its last term, the Supreme Court issued a little-noticed opinion on sentencing issues. Federal Rule of Criminal Procedure 32(h) was promulgated before the Court declared in United States v. Booker that the Federal Sentencing Guidelines were advisory. Did that rule, which speaks of “departures” from the Guidelines, survive Booker? In Irizarry v. United States, the Court confirmed that it did not. As a result of the ruling, district judges need not provide advance notice of their intent to depart from the Guidelines for a reason that the parties (and the probation office) did not identify before the sentencing hearing. The Court’s 5-4 ruling in Irizarry highlights a number of interesting issues, including the Justices’ divergent views over what it means to “depart” or “diverge” from the now-advisory Guidelines.

Rule 32(h): Did it Survive Booker?

Rule 32(h) of the Federal Rules states that “[b]efore the court may depart from the applicable sentencing range on a ground not identified for departure either in the presentence report or in a party’s prehearing submission, the court must give the parties reasonable notice that it is contemplating such a departure.”

This Rule was promulgated when the Guidelines were still mandatory. Thus, under the mandatory Guidelines regime, a judge who was considering departing from the Guidelines (for a reason not raised by the parties or the probation office) was required to give the parties “reasonable notice” of her intent to depart.

After the Booker Court ruled that the Guidelines are advisory, must district judges continue to follow Rule 32(h)?


The defendant in Irizarry pleaded guilty to one count of making a threatening communication to his ex-wife. At the sentencing hearing, the government introduced the testimony of a number of witnesses, including the ex-wife, and the defendant testified himself. After considering the presentence report, the arguments of counsel, and the testimony of the witnesses, the district court concluded that “the guideline range is not appropriate in this case.” Based on her independent determination that the defendant posed a continuing threat to his ex-wife, the court sentenced the defendant to a term of 60 months – nine months longer than the high end of the Guidelines range.

Defense counsel protested, arguing that Rule 32 required the court to provide prior notice of her intent to depart upwards from the Guidelines. The court then expressed her view that “the law on that is out the window,” adding that “you had notice that the guidelines were only advisory and the court could sentence anywhere with the statutory range.”

The Majority: District Courts Don’t Need to Notify Parties of a Departure from the Advisory Guidelines

Agreeing with the district court, the Supreme Court ruled in Irizarry that Rule 32(h) no longer applies. Justice Stevens wrote the brief majority opinion, which was joined by Chief Justice Roberts and Justices Scalia and Alito, with Justice Thomas concurring separately.

While noting that the failure to provide notice of an upward departure may have raised due process concerns in the mandatory Guidelines world, Justice Stevens saw no such concerns when the Guidelines are advisory. He contrasted the pre-Booker world (where courts could not disregard the “mechanical dictates of the Guidelines” unless “narrowly defined circumstances” allowed a departure) with the post-Booker world (where sentences outside the Guidelines are not presumed to be unreasonable). Today’s Guidelines remain a “starting point” and the “initial benchmark” for sentencing decisions, but they lack the same weight as the mandatory Guidelines, where departures were authorized only under limited statutory circumstances. Since a present-day defendant does not have the same expectation of being sentenced within a Guidelines range as a pre-Booker defendant, the present-day defendant’s due process rights are not violated if the district court departs upwards without providing notice.

Moreover, Justice Stevens continued, Rule 32(h) does not apply as a matter of statutory interpretation. That rule speaks of “departure” from the Guidelines. According to Justice Stevens, the term “departure” is an outmoded term that does not apply after Booker. (The proper term, post-Booker, is “variance” from a Guidelines range.)

Justice Stevens then turned to the practical aspects of sentencing, which he called a “fluid and dynamic process.” When a judge is contemplating a “variance” from the Guidelines, a notice requirement may cause “unnecessary delay” (perhaps requiring the judge to continue the sentencing hearing). In any event, said Justice Stevens, the parties would be unlikely to modify their sentencing arguments even if they knew the judge was contemplating a “variance.” The better practice, he concluded, is to allow sentencing judges to continue sentencing hearings in their discretion – not require them to do so in every case where a “variance” is contemplated.

The Dissent: District Courts Should Continue to Provide Notice after Booker

In dissent, Justice Breyer (joined by Justices Kennedy, Souter, and Ginsburg) minimized the distinction that Justice Stevens drew between the pre- and post-Booker worlds, noting that pre-Booker courts were always free to depart from the Guidelines. Even if Justice Stevens correctly suggests that post-Booker courts have more grounds to impose non-Guidelines sentences, Justice Breyer asserts that this state of affairs would support a notice requirement. In other words, if the district court decides to rely on one of many potential (and previously unidentified) grounds for departure, a notice requirement would promote “focused, adversarial litigation” at sentencing.

Citing a Solicitor General report, Justice Breyer points out that in the vast majority of cases, the parties (or the presentencing report) identify the grounds on which a district court chooses to enter a non-Guidelines sentence. Under these circumstances, the majority’s claim that a notice requirement would cause delay seems overblown. And even if there were some added burden or delay, continued Justice Breyer, such delay would be warranted as a matter of fairness.

Finally, Justice Breyer said that Rule 32(h)’s use of the term “departure” should be broadly interpreted to encompass what the majority refers to as “variances,” pointedly noting that the Court’s own post-Booker opinions (Gall and Rita) use the term “departure” to describe any non-Guidelines sentence.


The Irizarry decision may have limited practical application since sentencing judges rarely provide reasons for Guidelines departures (or “variances”) that have not previously been identified by the parties. Even so, more than three years after Booker, Irizarry shows that there are still deep fault lines on sentencing issues in the Court – and that clear guidance is very much still needed in our world of advisory Guidelines.

This article originally appeared on the American Bar Association Section of Litigation’s website for the Criminal Litigation Committee.

View the entire article in PDF format here.