Monday, March 09, 2009

Case 'o the Week: Ninth Heavy Hahn-ded on Rule 32(h) Notice Requirements

Does a defendant have the right to know they're going to get hammered, before the gavel falls? In a disappointing decision, a per curiam panel of the Ninth holds that briefing and arguing a departure issue is enough "notice" under Federal Rule of Criminal Procedure 32(h) to permit an upward departure -- even if the district court hasn't given notice of its intent to do so. United States v. Brett Hahn, __ F.3d __, No. 07-30324, 2009 WL 530933 (9th Cir. Mar. 4, 2009), decision available here.

Players: Per curiam decision with Chief Judge Kozinski, Judge Betty Fletcher, and Judge Johnnie Rawlinson.

Facts: Hahn got a heavy state sentence in Montana for criminal endangerment and intimidation – then the USAO prosecuted him for felon-in-possession, arising out of the same incident. Id. at *1. The PSR hit Hahn for the § 2K2.1 + 4 bump for possessing the gun during the course of another felony (the state offense), but was silent on whether the federal sentence should be concurrent or consecutive. Id.

The defense (correctly) argued in its briefs and at the sentencing hearing that USSG § 5G1.3 requires the federal sentence to be run concurrent, when the state offense increases the federal guideline range. Id. The government argued for an upward departure from Guideline § 5G1.3, seeking a consecutive sentence. Id.

The district court seemed inclined to agree with the government, but ran the sentence concurrent because it hadn’t given notice of its intent to depart upwards before the sentencing hearing. Id. The government appealed. Id. at *2.

Issue: “The government argues that the district court erred when it found inadequate notice because both parties briefed the issue of whether the court should impose a concurrent or consecutive sentence in their sentencing memoranda.” Id. at *2.

Held: “We agree. We vacate Hahn’s sentence and remand his case to the district court for resentencing.” Id. at*2. “The district court itself is required to give notice of its intent to depart only when the PSR and the parties’ prehearing submissions fail to identify the ground for departure. Fed. R. Crim. P. 32(h).” Id. “[W]e find that because the parties’ own sentencing memoranda discussed the propriety of concurrent or consecutive sentences, Hahn cannot claim that he had no notice that the district court might consider imposing a consecutive sentence.” Id.

Of Note: Chief Judge Kozinski concurs in the per curiam decision “without reservation.” Id. at *3. He writes a special concurrence, though, to emphasize that the district court erred by imposing the concurrent sentence if it thought the “reasonable” sentence should have been consecutive. “If a judge believes that he can’t impose the right sentence without giving notice, he must give notice – and grant a continuance if necessary – rather than imposing the wrong sentence.” Id. at *3.

How to Use: This little per curiam decision takes an unwelcome bite out of sentencing-notice rights for upward departures. As a practical matter, how often does a district court sua sponte depart upwards without someone with a prosecutorial bend – be it an AUSA or a probation officer – urging the departure and its basis before the sentencing hearing? This, according to Hahn, is “notice” to the defense that the court may indeed depart upwards.

One distinction bearing emphasis is that in Hahn both parties briefed and fully argued the concurrent/consecutive issue before the sentencing hearing. A casual reference in the government’s briefs alone may not satisfy the Hahn notice requirement before an upward departure is imposed (although the Hahn PSR’s silence on the departure issue is a worrisome fact that will muddy future notice analyses).

For Further Reading: For an interesting and useful discussion of Rule 32 notice requirements in the post-Booker world, see Sentencing Resource Counsel Amy Baron-Evan’s memo, “After Irizarry: . . .”, available here .

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at


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