U.S. v. Cruz-Perez, No. 06-30343 (6-10-09). The court said that the sentence was going to be high, so what further notice do you need. That's the gist of this opinion authored by Tallman and joined by Beezer and M. Smith. The defendant plead to a 1326 charge. There was no plea agreement, it seems. He had prior reentries, for which he got 24 month sentences, and he had immediately returned. The PSR calculated him as an aggravated felony enhancement, and his guideline range as 46 to 57 months. The government filed a sentencing recommendation for a guideline sentence. The court had expressed concerns about his past. At the sentencing, the court found that the defendant was not a +16 under a categorical approach, and so his guidelines went down to 21-27 months. The court stated that the prior sentences obviously served no deterrent effect, and that the present guidelines were too long. After hearing argument, a 48 month sentence was imposed. Defendant appealed, arguing that he did not receive adequate notice and that due process was violated. Not really, opines the 9th, because under Irizarry, the court does not have to give notice for a variance because the defendant understands the guidelines are advisory and he knows the maximum sentence. As for Burns, and Rule 32, well, the 9th sidestepped, saying that it did not need to decide whether this was a variance or a departure because the important thing was that notice was given, and that each side knew what the arguments were for, and what sentences were being asked. The 9th said it was hard to imagine what else defendant could have argued, since he knew the cards on the table, and what the court was considering as well as the government. The court considered the 3553 factors, weighed and balanced, and the sentence was imposed considering facts already disclosed and argued about.