In Irizarry v. US (opinion below), the Court is asked to decide whether or not a district court must offer advance warning for an upward sentencing departure.

In 2000, Richard Irizarry’s wife moved from California to South Carolina and filed for divorce, claiming that Mr. Irizarry verbally and mentally abused her and their children during their 5-year marriage. Irizarry drove to South Carolina with a hammer, rope, tarps, and duct tape. Over the next few years, Irizarry would continually track his ex-wife down after she moved and he sent her nearly 300 threatening e-mails (which she promptly forwarded to the FBI.)

The district judge explained his rationale for upping Irizarry’s 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.

The question at hand now before the Court is whether or not the district judge may deviate upwards from the sentencing guidelines before giving both parties “notice.” Rule 32(h) of the Federal Sentencing Guidelines reads:

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.

Since Booker made sentencing guidelines advisory (as opposed to mandatory) the Court has a felt a huge surge of cases asking how exactly these guidelines should be treated. The Booker line of thought has become increasingly unpopular as Justice Alito noted in his dissent in Gall v. US:

Court is committed to the Blakely-Booker line of cases, but we are not required to continue along a path that will take us further and further off course.

Justice Thomas brought up his own reservations in Kimbrough v. US:

The Court’s post-Booker sentencing cases illustrate why the remedial majority in Booker was mistaken to craft a remedy far broader than necessary to correct constitutional error. The Court is now confronted with a host of questions about how to administer a sentencing scheme that has no basis in the statute. Because the Court’s decisions in this area are necessarily grounded in policy considerations rather than law, I respectfully dissent.

Booker has proven to be one of the Court’s most problematic deviations in recent memory. The liberal block of the Court has been forced to uphold a decision that sounds increasingly ridiculous (“The Government acknowledges that the Guidelines “are now advisory” and that, as a general matter, “courts may vary [from Guidelines ranges] based solely on policy considerations, including disagreements with the Guidelines.” – Ginsburg’s majority opinion Kimbrough.)

It’s hard to ignore the irony of the Court’s decision to hinge sentencing on “reasonableness” when the term itself has been chopped up such that it now requires quotation marks around it. The Court’s definition of “reasonableness” isn’t simply the reasonable definition of the term, it is a complex system of tests and rules that are most unreasonable. Don’t expect these sentencing cases to stop flowing into the Court’s docket any time soon.

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