For those of you who practice in federal court, Asst. U.S. Public Defender Jerry Beard offers the following valuable new information:

Last Friday the Supremes granted cert in Irizarry v. US to decide whether sentencing courts must provide notice before imposing a non-guideline sentence. This is the Rule 32 notice issue which our office had aggressively appealed over the past 18 months. Looks like our petition lost the beauty contest.

Even so, the 5-5 circuit split on this issue is going to be resolved!

Since some judges routinely impose such non-guideline sentences without providing any advance notice, I would strongly advise folks to continue objecting on this basis, and also to object to the unreasonableness of the sentence:

“Your Honor, in accordance with Rule 32(h) and the Supreme Court’s opinion in Burns v. United States, and in light of the High Court’s recent grant of certiorari in Irizarry v. US to decide the ‘notice’ issue, we object to the Court’s failure to provide notice of its decision to impose a non-guideline sentence. We also object to the sentence imposed as being procedurally and substantively unreasonable.”

It is important, critical, that both objections be made in open court, even if it requires interrupting the judge. (A post-sentencing objection won’t cut it.)

Give me a shout if you have any questions.

Jerry Beard (Ph: 472-7236)

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