U.S. v. Byun, No. 07-10254 (7-1-08). Defendant plead guilty to importing into the U.S. an alien for purposes of prostitution. The factual basis stated that the alien was a minor. The court imposed a sex offender registration requirement under SORNA, and defendant objected. On appeal, the 9th (Berzon joined by Bea and Gibson) affirmed, holding that importation of a minor for prostitution purposes is akin to solicitation of a minor, and is also like "transportation with intent" sex conduct. The purposes of SORNA match up with this offense, and language in the statute is broad enough to cover such importation. The defense argument that the minor might not have engaged in prostitution is specious given the purpose of importation, and would nonetheless fall under the catch-all.

U.S. v. Warr, No. 07-30125 (7-2-08). The defendant plead guilty to nine counts of starting a wildfire arson. He faced a guideline range of 70 to 87 months, but the district court, based on evidence adduced and presented at a sentencing hearing, varied upwards to 120 months. The court explained its reasons as being concerned with the defendant being a borderline psychopath pyromaniac, with a history of violence and compulsive behavior, with an extensive prior record, and who set 20 fires. The defendant appealed, arguing that loss should not have included fire suppression costs, and that the sentence was unreasonable. The 9th (Tallman joined by Kleinfeld and Tashima) affirmed. The 9th found the sentencing "exemplary," with the court weighing and considering the various 3553 characteristics, and assessing what the sentence should entail. The court did not lose sight of the forest for the trees. And yet, What is Warr good for? Absolutely nothing? No, because the 9th found that the court did err in considering facts -- here a recidivist study by the ever friendly BOP on defendants with similar offenses (2 out of 3 chances of repeating) -- that were not disclosed beforehand. The 9th emphasized that Rule 32(i)(1)(C) requires the disclosure of all relevant factual information to the defendant for adversariel testing. This was not done here. The court may have relied on the study, suspect as it might have been, but because there was no objection, it was reviewed under plain error and found harmless.

So what can we take from this:

-- The Supremes in Irizarry, 2008 WL 2369164, may not require notice of a variance, but the rules do require disclosure of relevant sentencing facts. There must be a basis for a variance, and the basis must rest on disclosed facts. See Gall/Kimbrough.

-- It is essential therefore that the court state what facts it is relying on and counsel must make sure she has seen and tested those facts.

-- No facts, no variance. It has to be tested for reasonableness.

Note: The 9th stated that while the district court should not have cited the recidivism study (and by inference relied upon it) without first notifying the parties, it does not amount to plain error. Given that there was error, was the 9th wrong to state that defendant's argument was "without merit?" I think so. The defendant did get the 9th to say that the court erred, so there had to be some soundness to the argument and hence not meritless. Further, the 9th's confidence that the district court's justification for the sentence was "well-reasoned and justified" might not be so if the defendant had in fact challenged the recidivism study.

U.S. v. Evans-Martinez, No. 05-10280 (July 2, 2008). This is an important sentencing case to be read in conjuncture with Warr above. The 9th (Beezer joined by Fisher and Timlin) vacate a sentence and remand for resentencing because the district court failed to give him notice of its intent to depart from the guidelines. This was a child pornography case, and the defendant cooperated. He faced a mandatory minimum 10 years, and a guideline sentence of 10 years. The district court commented on the "disturbing" nature of the case, and sentenced to 15 years. Although the case was post-Booker, and the court recognized the guidelines were advisory, the government still conceded at oral argument that the failure of notice was plain error. The 9th holds therefore that the notice requirement under Rule 32(h) requires the district court to provide notice of its intent to depart from the guidelines post-Booker as it did pre-Booker. Moreover, the error was plain and required vacation of the sentence. The 9th reasons that the "[p]arties must receive notice the court is contemplating a departure to ensure that issues with the potential to impact sentencing are fully aired." The 9th also finds that its holding is consistent with Irizarry. Although Irizarry holds that Rule 32(h) does not require notice before imposing a variance, there is a distinction, recognized explicitly by the Supremes, between a variance and a departure. Irizarry recognizes a departure as occurring within a guideline framework; and is a term of art. Irizarry therefore does not extend to departures, but is limited to variances. There is no tension between Rule 32 notice for departures and no notice for variances because the Supremes define the scope, and seemingly approves of the continued application of Rule 32(h) and Burns to departures post-Booker.

So, we can take from Evans-Martinez and from Warr (or, losing the battle but winning the war):

-- Post-Booker, Rule 32(h) and Burns still require notice of departures from the guidelines.

-- Variances are under 3553; they are not departures.

-- Irizarry does not require notice of a variance,

--The 9th in Warr requires disclosure of facts for a variance under Rule 32.

--Therefore, the 9th in Warr and Evans-Martinez require the disclosure of all facts under Rule 32 for either a departure or a variance; and notice of a guideline departure under Rule 32. Facts must be tested for any departure or variance, and really for any sentence, guideline or non-guideline, to allow for a reasonableness review.

Notice is dead; long live Notice! Variance notice under Irizarry may have died, but guideline notice lives on, and facts must be disclosed in all sentencings. Thus, the practical effect may be to have a notice requirement.