U.S. v. Irizarry, No. 05-11718.

• Decision Date: 01 August 2006
• Docket Number: No. 05-11718.
• Citation: 458 F.3d 1208
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Richard IRIZARRY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

458 F.3d 1208

UNITED STATES of America, Plaintiff-Appellee, v. Richard IRIZARRY, Defendant-Appellant.

No. 05-11718.

United States Court of Appeals, Eleventh Circuit.

August 1, 2006.

Arthur J. Madden, III (Court-Appointed), Madden & Soto, Mobile, AL, for Defendant-Appellant.

David Andrew Sigler, Mobile, AL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Southern District of Alabama.

Before EDMONDSON, Chief Judge, KRAVITCH, Circuit Judge, and MIDDLEBROOKS^*, District Judge.

PER CURIAM:

Defendant Richard Irizarry plead guilty to making a threatening interstate communication to his ex-wife in violation of 18 U.S.C. section 875(c). The district court issued a sentence nine months longer than the advisory guidelines range because of the likelihood Defendant would continue to threaten his wife. Defendant appeals this sentence, 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 district court concluded that Rule 32(h) was not applicable under the circumstances. We affirm.

I. Background

In 2003, Defendant was indicted with one count of making a threatening interstate communication in violation of 18 U.S.C. section 875(c). In 2004, a superseding indictment charged Defendant with fifteen counts of this offense. Without benefit of a plea agreement, Defendant filed a factual resume that admitted these things: (1) Defendant sent the e-mail charged in Count Thirteen of the superseding indictment to his ex-wife, Leah Smith, threatening to kill her and her new husband; (2) Defendant had "sent dozens of other similar e-mails" since his divorce from Ms. Smith in 2001 in violation of a restraining order; (3) the e-mails were "intended by [Defendant] to convey true threats to kill or injure multiple persons;" and (4) Defendant "at all times relevant during the commission of this crime . . . acted knowingly and willfully." On motion of the United States, the district court dismissed the remaining counts.

At the sentencing hearing, Ms. Smith testified that she married Defendant in 1995, that they had two children, and that Defendant physically and mentally abused Ms. Smith and her son during the marriage. In 2000, Ms. Smith moved from California to South Carolina, where she obtained a divorce and a restraining order in 2001. Defendant drove cross-country and tracked down Ms. Smith's apartment; his van contained a hammer, rope, tarps, and duct tape. Defendant was arrested and jailed for 30 days for violating the restraining order. Ms. Smith moved to Mobile, Alabama.

Between the divorce in 2001 and Defendant's arrest in December 2003, Defendant sent Ms. Smith 255 e-mails, many of which threatened to kill Ms. Smith, her husband, and her mother. Ms. Smith became especially concerned about the safety of her mother, who lived in the same city as Defendant. Ms. Smith contacted the FBI and began forwarding Defendant's e-mails to FBI agents.

In 2003, Defendant called Ms. Smith at her new home and sent Ms. Smith's husband a Christmas card with a Mobile postmark. When Defendant was taken into custody in December 2003, his automobile contained a list of private investigators in Mobile; a print-out from an internet search service showing that a profile of Ms. Smith was available; maps of the Mobile area with notes about the location of Ms. Smith, her children's schools, and her husband's workplace; and cost estimates for travel to Mobile. During an interview with FBI agents following his arrest, Defendant threatened to shoot, car bomb, or decapitate Ms. Smith and her family and to "leave a trail of blood from here to Alabama" to protect his kids. Defendant's cellmate testified that Defendant told him that Ms. Smith's husband was abusing Defendant's children and that Defendant intended to kill or hire someone to kill Ms. Smith's husband. Defendant testified at the sentencing hearing, denying that he intended to carry out his threats against Ms. Smith and her family.

The presentence investigation report recommended two, two-level sentence enhancements because Defendant's offense violated a court protection order and involved more than two threats and, also, one six-level enhancement because the offense involved "conduct evidencing an intent to carry out such threat." See U.S.S.G. § 2A6.1(b)(1)-(3). Defendant objected to the six-level enhancement, arguing that it was error for the district court to base a sentence enhancement on facts found using a preponderance of the evidence standard. The district court overruled the objection and applied all three sentence enhancements, leading to an advisory guidelines range of 41 to 51 months. The district court then sentenced Defendant to the statutory maximum of 60 months' imprisonment, three years' supervised release, and a $100 special assessment. The court gave the following reasons for its sentence:

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.

(R.69 at 69-70.) (emphasis added).

Defendant objected that the court had not given advance notice of its intent to depart upward from the sentencing guidelines as required by Rule 32(h). The district court overruled this objection, saying it believed Rule 32(h) was no longer applicable because Defendant "had notice that the guidelines were only advisory and the Court could sentence anywhere within the statutory range as defined by the United States Code statute." The sentencing court did not say that it was engaged in an upward departure under the guidelines. Defendant now appeals his sentence, arguing that the district court violated Rule 32(h) and Burns v. United States, 501 U.S. 129, 111 S.Ct. 2182, 2187, 115 L.Ed.2d 123 (1991), by failing to give advance notice of the grounds on which the court was considering an upward departure.¹

II. Discussion

Federal Rule of Criminal Procedure 32(h) provides:

Before 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 notice must specify any ground on which the court is contemplating a departure.

Rule 32(h) codified the Supreme Court's statement in Burns that "before a district court can depart upward on a ground not identified as a ground for upward departure either in the presentence report or in a prehearing submission by the Government, Rule 32 requires that the district court give the parties reasonable notice that it is contemplating such a ruling." 111 S.Ct. at 2187. The Court in Burns concluded that advance notice was required to ensure "full adversary testing of the issues relevant to a Guidelines sentence" and to fulfill Rule 32's requirement that the parties have "an opportunity to comment upon . . . matters relating to the appropriate sentence." Id. at 2186.

We conclude that the above-guidelines sentence imposed by the district court in this case was a variance, not a guidelines departure. The district court correctly calculated the advisory guidelines range. The court then considered the adequacy of this range in the light of the sentencing factors listed in 18 U.S.C. section 3553(a) and the evidence presented at the sentencing hearing.² After concluding that the guidelines range did not adequately address the future risk Defendant posed to the public, see 18 U.S.C. section 3553(a)(2)(C), the court exercised its post-Booker discretion to impose a reasonable sentence outside the sentencing guidelines range. See United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 757, 160 L.Ed.2d 621 (2005).

We have not previously determined whether the notice requirement of Rule 32(h) applies to a sentence set outside the...