Essentially, the Supreme Court made a critical distinction between variance and departure.
New York, NY (PRWEB) January 30, 2013
New York City-based Federal appeals lawyer Stephen N. Preziosi’s latest installment in his United States Sentencing Guidelines (U.S.S.G.) awareness campaign features a look at the groundbreaking 2008 Richard Irizarry, Petitioner v. United States case.
In Richard Irizarry, Petitioner v. United States, the Supreme Court scrutinized whether the Sentencing Court was obligated to give notice before contemplating a possible variance from United States Sentencing Guidelines (a.k.a. Federal Sentencing Guidelines), when the reasons for the potential variance weren’t identified in the presentence report, or in a party’s pre-hearing submission.
In the case, the petitioner, Richard Irizarry, pled guilty to one count of making a threatening interstate communication, which was a violation of 18 U.S.C. § 875(c). As part of his plea, Irizarry made a series of self-incriminating admissions. A presentence report (PSR) was also filed at the time, itemizing additional violations, and recommending a United States Sentencing Guidelines sentence ranging from 41 to 51 months. In that same PSR, a probation officer noted that Irizarry’s criminal history category might not accurately capture his “past criminal conduct or the likelihood that [Irizarry] will commit other crimes.”
Despite the recommended 41 to 51 month prison sentence, the Sentencing Court – without giving notice -- contemplated an upward departure from the Guidelines, and per that process ultimately sentenced Irizarry to 60 months in prison, and three years of supervised release. Irizarry’s defense counsel objected to the lack of notice, to which the Sentencing Court replied: “You had notice that the Guidelines were only advisory and the court could sentence anywhere within the statutory range.”
On appeal, the Supreme Court determined that the Sentencing Court can lawfully exercise its authority to vary from a Guidelines sentence, without necessarily departing from them -- and therefore invoke the requirements laid out in rule 32(h) of the Federal Rules of Criminal Procedure, which require giving “reasonable notice” to the parties.
“Essentially, the Supreme Court made a critical distinction between variance and departure,” commented Stephen N. Preziosi. “They confirmed that `departure’ is a term of art under the Guidelines, and refers only to non-Guidelines sentences imposed under the framework set out in the Guidelines. At the same time, the Supreme Court confirmed that a sentence that falls outside of the Guidelines – in either direction – is not inherently unreasonable.”
Mr. Preziosi’s full analysis of Richard Irizarry, Petitioner v. United States is available on his firm’s website at http://www.newyorkappellatelawyer.com/at-sentencing-the-u-s-district-court-judge-does-not-have-to-warn-the-defendant-that-he-intends-to-vary-from-the-recommended-sentencing-range/.
For more information or media inquiries, email newyorkappellatelawyer(at)gmail(dot)com or phone (212) 300-3845.
About the Appellate Law Office of Stephen N. Preziosi, P.C.
Federal appeals lawyer Stephen N. Preziosi handles criminal appeals in all U.S. Circuit Courts of Appeals and in New York State Appellate Courts (including Appellate Divisions and the New York Court of Appeals). Whether a case is under the Penal Law in New York State Courts or under Federal Law in the U.S. District Courts, Mr. Preziosi has extensive experience with all types of appellate matters in both the New York State Courts and the Federal Circuit Courts of Appeal. Mr. Preziosi has pursued appellate cases in the Appellate Divisions, the Appellate Terms and the highest court in the State of New York, the New York Court of Appeals. He has also taken on cases in the various U.S. Circuit Courts of Appeals, and successfully identified legal issues, designed and written briefs and conducted oral argument. The firm’s practice is concentrated in the area of appeals in criminal matters in both State and Federal Courts, and Mr. Preziosi recently launched a Federal Sentencing Guidelines Awareness Campaign to help the general public learn more about this critically important and influential aspect of criminal law. Learn more at http://www.newyorkappellatelawyer.com.