U.S. v. Orlando, No. 07-50473 (1-23-09). This is a disappointing opinion that applies Irizarry, the Supreme Court case that held that notice for a sentencing variance is not required. The defendant faced a guideline range of 27 to 33 months for tax evasion. The court imposed a 40-month sentence. Defendant appealed, arguing that it was a departure, not a variance (he lost on that one); and that the court failed to grant him a continuance to respond to the court's concerns and intent. In dismissive language, the 9th shrugged (Farris joined by Wardlaw and Schwarzer). The 9th held that indeed Irizarry had language indicating a court should grant a continuance if requested. Irizarry actually lays out a test, finding an abuse of discretion if the court fails to grant a continuance if the variance is based on (1) facts that amount to a prejudicial surprise; (2) without considering a continuance; and (3) where advance notice might have affected evidentiary presentation. Quite surprisingly, the 9th seems to apply this test in a cursory conclusory manner, holding that the test was not satisfied because the facts were in the PSR (on SR release-, long criminal history, need for deterrence, seriousness of crime, and so forth -- although one could argue that all those factors have been taken into account in the Guidelines, and therefore a variance was not necessary). As for the request for a continuance, the 9th also finds that a continuance was not necessary in this "garden variety," "run of the mill case" because defense counsel should have, or could have, anticipated a possible variance. The defense counsel failed to say exactly what he needed the time for except to respond. The variance of 7 months may not seem like a lot, but when the guideline is only 27 to 33 months, it is substantial. The Supremes stressed in their sentencing cases the need for an adversarial proceeding and fact development; Irizzary was an aberration, but could be explained by looking at the development of facts, and the discretion of the court to grant a continuance. This opinion loses sight of the purpose of sentencing in its cite, and adopts a far too expansive view of the test. The opinion may have been meant to keep the criminal justice system moving, but it loses sight of the purpose. One result of this opinion may be a slowing down of the process as counsel either assumes the worse, or pleas or struck that take discretion from the court.