## Facts

- Richard Irizarry pleaded guilty in federal court to making a threatening interstate communication to his ex-wife, in violation of 18 U.S.C. § 875(c).
- After an abusive marriage, Irizarry’s ex-wife obtained a divorce and a restraining order barring contact.
- Over roughly two years, Irizarry sent his ex-wife hundreds of emails containing threats to kill her and her family.
- The presentence report calculated an advisory Sentencing Guidelines range with an upper end of 51 months’ imprisonment.
- At sentencing, the district judge found the advisory range inadequate given the danger and likelihood of continued threats and imposed the 60-month statutory maximum plus supervised release.
- The district court treated the sentence above the advisory range as a variance under 18 U.S.C. § 3553(a), not a Guidelines departure, and did not provide advance notice under Federal Rule of Criminal Procedure 32(h).
- The Eleventh Circuit affirmed, holding Rule 32(h) inapplicable to variances.

## Issues

1. Whether Federal Rule of Criminal Procedure 32(h) requires advance notice when a district court intends to impose a sentence outside the advisory Guidelines range as a § 3553(a) variance on a ground not identified in the presentence report or the parties’ submissions.

## Decision

- The Supreme Court affirmed.
- Rule 32(h) does not require advance notice for a non-Guidelines sentence imposed as a variance under § 3553(a).
- The Court read Rule 32(h)’s notice requirement as limited to departures under the Sentencing Guidelines.
- The Court rejected a due process-based extension of Burns-style notice to variances in the post-Booker advisory-Guidelines system.

## Legal Principles

- Rule 32(h) requires reasonable notice only before a court departs from the applicable Guidelines range on an unflagged departure ground; it does not cover § 3553(a) variances.
- A “departure” is a sentence imposed under the Guidelines’ departure provisions; a “variance” is a sentence outside the advisory range based on § 3553(a) factors.
- After Booker and related precedents, parties have no entitlement or settled expectation of a within-Guidelines sentence and must be prepared to address § 3553(a) considerations at sentencing.
- The lack of Rule 32(h) notice for variances does not, by itself, violate due process in the advisory-Guidelines regime.

## Conclusion

The Court held that Rule 32(h) does not require advance notice when a district court imposes an above-Guidelines sentence as a § 3553(a) variance, because the rule’s notice requirement applies only to Guidelines departures in the advisory sentencing system.


Irizarry v. United States, 553 U.S. 708 (2008)