Wednesday, May 17, 2006

Notice of Intent to Sentence above the Guidelines

United States v. Thomas Walker, No. 05-1812 (May 17, 2006): Mr. Walker was sentenced, upon a guillty plea, for stabbing four guards at a federal prison. His guidelines range was 168-210 months in prison. The court sentenced him to 240 months. He argued that under Rule 32(h) he should have received notice of the court's intent to sentence above the guidelines.

The Seventh Circuit held that Rule 32(h) applies only to departures, as defined pre-Booker. The 240-month sentence was not a departure, and so he had no right to notice. The holding is muddied somewhat by the fact that he made no objection below and the Seventh Circuit considered the case under the plain error standard.

The Court's holding is remarkable, since the government, after oral argument, filed a letter under Circuit Rule 28(j) and essentially confessed error on this point, although maintaining that the error was harmless. The Court was unwilling to accept the confession.

The decision may be somewhat short-lived, since an amendment to Rule 32, effective December, 2006, will require the district court to give the sort of notice that Walker says is unnecessary.