Irizarry v. United States

• Citation: 553 U.S. 708,171 L.Ed.2d 28,128 S.Ct. 2198,08 Cal. Daily Op. Serv. 7130,21 Fla. L. Weekly Fed. S 313,76 USLW 4401,2008 Daily Journal D.A.R. 8671
• Decision Date: 12 June 2008
• Docket Number: No. 06–7517.,06–7517.
• Parties: Richard IRIZARRY, Petitioner, v. UNITED STATES.
• Court: United States Supreme Court

08 Cal. Daily Op. Serv. 7130

128 S.Ct. 2198

171 L.Ed.2d 28

2008 Daily Journal D.A.R. 8671

21 Fla. L. Weekly Fed. S 313

553 U.S. 708

76 USLW 4401

Richard IRIZARRY, Petitioner,

v.UNITED STATES.

No. 06–7517.

Supreme Court of the United States

Argued April 15, 2008.Decided June 12, 2008.

Syllabus ^*

Petitioner pleaded guilty to making a threatening interstate communication to his ex-wife, in violation of federal law. Although the presentence report recommended a Federal Sentencing Guidelines range of 41–to–51 months in prison, the court imposed the statutory maximum sentence—60 months in prison and 3 years of supervised release—rejecting petitioner's objection that he was entitled to notice that the court was contemplating an upward departure. The Eleventh Circuit affirmed, reasoning that Federal Rule of Criminal Procedure 32(h), which states that “[b]efore the court may depart from the applicable sentencing range on a ground not identified ... 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,” did not apply because the sentence was a variance, not a Guidelines departure.

Held: Rule 32(h) does not apply to a variance from a recommended Guidelines range. At the time that Burns v. United States, 501 U.S. 129, 111 S.Ct. 2182, 115 L.Ed.2d 123, was decided, prompting Rule 32(h)'s promulgation, the Guidelines were mandatory; the Sentencing Reform Act of 1984 prohibited district courts from disregarding most of the Guidelines' “mechanical dictates,” id., at 133, 111 S.Ct. 2182. Confronted with the constitutional problems that might otherwise arise, the Burns Court held that the Rule 32 provision allowing parties to comment on the appropriate sentence—now Rule 32(i)(1)(C)—would be “render[ed] meaningless” unless the defendant were given notice of a contemplated departure. Id., at 135–136, 111 S.Ct. 2182. Any constitutionally protected expectation that a defendant will receive a sentence within the presumptively applicable Guidelines range did not, however, survive United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621, which invalidated the Guidelines' mandatory features. 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. Indeed, a sentence outside the Guidelines carries no presumption of unreasonableness. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Thus, the due process concerns motivating the Court to require notice in a mandatory Guidelines world no longer provide a basis for extending the Burns rule either through an interpretation of Rule 32(h) itself or through Rule 32(i)(1)(C). Nor does the rule apply to 18 U.S.C. § 3553 variances by its terms. Although the Guidelines, as the “starting point and the initial benchmark,” continue to play a role in the sentencing determination, see Gall, 552 U.S., at 49, 128 S.Ct. 586, there is no longer a limit comparable to the one in Burns on variances from Guidelines ranges that a district court may find justified. This Court is confident that district judges and counsel have the ability—especially in light of Rule 32's other procedural protections—to make sure that all relevant matters relating to a sentencing decision have been considered before a final determination is made. Pp. 2202 – 2204.

458 F.3d 1208, affirmed.

STEVENS, J., delivered the opinion of the Court, in which ROBERTS, C.J., and SCALIA, THOMAS, and ALITO, JJ., joined. THOMAS, J., filed a concurring opinion. BREYER, J., filed a dissenting opinion, in which KENNEDY, SOUTER, and GINSBURG, JJ., joined.

Arthur J. Madden, III, Mobile, AL, for petitioner.

Matthew D. Roberts, Washington, D.C., for respondent.

Peter B. Rutledge, Charlottesville, VA, as amicus curiae, appointed by this Court, in support of the judgment below.Jonathan D. Hacker, Harvard Law School, Supreme Court and Appellate Advocacy Clinic, Cambridge, MA, Arthur J. Madden III, Counsel of Record, Madden & Soto, Mobile, AL, Walter Dellinger, Mark S. Davies, Ryan W. Scott, Admitted only in Illinois, Susan M. Moss, O'Melveny & Myers LLP, Washington, DC, for petitioner.Paul D. Clement, Solicitor General, Counsel of Record, Alice S. Fisher, Assistant Attorney General, Michael R. Dreeben, Deputy Solicitor General, Matthew D. Roberts, Assistant to the Solicitor General, Sangita K. Rao, Attorney, Department of Justice, Washington, D.C., for United States.Justice STEVENS delivered the opinion of the Court.

Rule 32(h) of the Federal Rules of Criminal Procedure, promulgated in response to our decision in Burns v. United States, 501 U.S. 129, 111 S.Ct. 2182, 115 L.Ed.2d 123 (1991), 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.” The question presented by this case is whether that Rule applies to every sentence that is a variance from the recommended Federal Sentencing Guidelines range even though not considered a “departure” as that term was used when Rule 32(h) was promulgated.

I

Petitioner, Richard Irizarry, pleaded guilty to one count of making a threatening interstate communication, in violation of 18 U.S.C. § 875(c). Petitioner made the following admissions in the factual resume accompanying his plea: (1) On November 5, 2003, he sent an e-mail threatening to kill his ex-wife and her new husband; (2) he had sent “dozens” of similar e-mails in violation of a restraining order; (3) he intended the e-mails to “convey true threats to kill or injure multiple persons”; and (4) at all times he acted knowingly and willfully. App. 273–275.

The presentence report (PSR), in addition to describing the threatening e-mails, reported that petitioner had asked another inmate to kill his ex-wife's new husband. Brief for United States 6. The PSR advised against an adjustment for acceptance of responsibility and recommended a Guidelines sentencing range of 41–to–51 months of imprisonment, based on enhancements for violating court protective orders, making multiple threats, and intending to carry out those threats. Brief for Petitioner 9. As possible grounds for a departure, the probation officer stated that petitioner's criminal history category might not adequately reflect his “ ‘past criminal conduct or the likelihood that [petitioner] will commit other crimes.’ ” Ibid.

The Government made no objection to the PSR, but advised the court that it intended to call petitioner's ex-wife as a witness at the sentencing hearing. App. 293. Petitioner objected to the PSR's application of the enhancement based on his intention to carry out the threats and its rejection of an adjustment for acceptance of responsibility. Id., at 295–296.

Four witnesses testified at the sentencing hearing. Id., at 299. Petitioner's ex-wife described incidents of domestic violence, the basis for the restraining order against petitioner, and the threats petitioner made against her and her family and friends. Id., at 307, 309, 314. She emphasized at some length her genuine concern that petitioner fully intended to carry out his threats. Id., at 320. A special agent of the Federal Bureau of Investigation was called to describe documents recovered from petitioner's vehicle when he was arrested; those documents indicated he intended to track down his ex-wife and their children. Id., at 326–328. Petitioner's cellmate next testified that petitioner “was obsessed with the idea of getting rid of” his ex-wife's husband. Id., at 336. Finally, petitioner testified at some length, stating that he accepted responsibility for the e-mails, but that he did not really intend to carry out his threats. Id., at 361. Petitioner also denied speaking to his cellmate about killing his ex-wife's husband. Id., at 356–357.

After hearing from counsel, the trial judge delivered a thoughtful oral decision, which included findings resolving certain disputed issues of fact. She found that petitioner had deliberately terrorized his ex-wife, that he intended to carry out one or more of his threats, “that he still intends to threaten and to terrorize Ms. Smith by whatever means he can and that he does not accept responsibility for what he has done.” Id., at 372. After giving both petitioner and counsel an opportunity to make further comment, the judge concluded:

“I've considered all of the evidence presented today, I've considered everything that's in the presentence report, and I've considered the statutory purpose of sentencing and the sentencing guideline range. I find the guideline range is not appropriate in this case. I find Mr. Irizarry's conduct most disturbing. I am sincerely convinced that he will continue, as his ex-wife testified, in this conduct regardless of what this court does and regardless of what kind of supervision he's under. And based upon that, I find that the maximum time that he can be incapacitated is what is best for society, and therefore the guideline range, I think, is not high enough.

“The guideline range goes up to 51 months, which is only nine months shorter than the statutory maximum. But I think in Mr. Irizarry's case the statutory maximum is what's appropriate, and that's what I'm going to sentence him.” Id., at 374–375.

The court imposed a sentence of 60 months of imprisonment to be followed by a 3–year term of supervised release. Id., at 375.

Defense counsel then raised the objection that presents the issue before us today. He stated, “We didn't have notice of [the court's] intent to upwardly depart. What the law is on that now with—,” to which the Court responded, “I think the law on that is out the window .... You had notice that the guidelines were only...