Monday, June 15, 2009

Case o' The Week: Fond Adieu, Rule 32 -- Cruz-Perez and Notice Before Above-Guideline Sentences

Notice anything odd about a district court doubling a guideline sentence without advance warning to the defense, or a continuance of the sentencing hearing? Judge Tallman doesn't (right), in United States v. Cruz-Perez__ F.3d __, No. 06-30343, 2009 WL 1607897 (9th Cir. June 10, 2009), opinion available here.

Hard-fought case by E.D. Wa. & Idaho AFPD Kathleen Moran. Decision by Judge Tallman, joined by Judges Beezer and M. Smith.

Facts: Cruz-Perez pleaded guilty to his third § 1326 conviction, after receiving 24 month sentences for his previous two illegal reentry cases. Id. at *1. He acknowledged when he pleaded guilty that the stat max was twenty years for this crime. Id. (Ed. note: reading this fact in the first paragraph bodes ill for the rest of the decision. . .)

The PSR incorrectly put Cruz-Perez at 46-57 months, and the government recommended a sentence in that range. Id. The defense then won a Taylor challenge to the use of a California prior, lowering the guideline range to 21 to 27 months. Id.

At the same hearing, the district court explained that it was considering going above the guidelines; defense counsel did not request a continuance or object to lack of notice. Id. at *2. The district court then essentially doubled the guidelines and imposed a sentence of 48 months. Cruz-Perez appealed.

Issue(s): “Cruz-Perez argues that the district court erred in imposing a sentence above the Guidelines range without providing him adequate prior notice under Federal Rule of Criminal Procedure 32(h).” Id. at *2.

Held: “The district court appropriately exercised its discretion when it sentenced Cruz-Perez to 48 months, a sentence above the applicable Guidelines range. The grounds for the district court’s imposition of this above-Guidelines sentence were clearly presented in the PSR and explored by the parties in both their written submissions and oral arguments. No objection for untimely notice or request for continuance was made. Even assuming that the sentence imposed was subject to Rule 32(h), Cruz-Perez received sufficient advance notice of the factors that warranted the sentence imposed.” Id. at *4.

Of Note: The gravamen of the defense complaint is that it was given inadequate notice, and thus never had full chance to be heard by the district court before the sentence was essentially doubled without advance notice or a continuance. Given the nature of this challenge (that the defense never got a fair fight on the dramatic sentencing increase) it is unfortunately ironic that the Ninth submitted the case without oral argument. See id. at *1 n.1.

How to Use: This short opinion undertakes a brief analysis of Irizarry, then concludes that Federal Rule of Criminal Procedure 32(h) (the rule requiring notice before an upward departure) is essentially dead letter law: it remains in effect, but the justification for the rule no longer exists. Id. at *3. Judge Tallman assures us that it doesn’t matter whether the increased sentence is a guideline departure or a variance when the grounds for the above-guideline sentence were identified before the hearing and explored by the parties. Id. at *4.

It is important, however, to emphasize that this is a plain-error case: no defense objection was made at sentencing to the Rule 32(h) violation. (There is curiously little discussion of plain error in the decision, making it dangerously vulnerable to incorrect citation as a general Rule 32(h) holding). The first and best way to fight Cruz-Perez notice problems is to object at sentencing, and request a continuance if an above-guideline sentence is threatened or imposed.

For Further Reading: The Cruz-Perez decision incorrectly flips the lead Supreme Court decision’s name: the correct cite is Irizarry v. United States, __ U.S. __, 128 S. Ct. 2198 (2008), decision available here. See id. at *3. In Irizarry, Justice Breyer persuasively questions in dissent why Federal Rule of Criminal Procedure Rule 32(h)’s notice provisions would apply to upward departures, but not to upward variances. 128 S. Ct. at 2204. The ABA and the Rules Committee are now taking a look at amendments to Rule 32. Unfortunately, thanks to DOJ’s active involvement in the amendment process some of these amendment “cures” may be worse than the Rule 32 disease.

Image of "Chief" Judge Richard Tallman (?!?) from

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


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