Federal Judge Commits “plain error” by imposing an “upward departure” without notice prior to sentencing

In our case of the week, able criminal defense counsel for Ladarius De’Shaun Jones appealed a 126-month sentence for one count of possession of a firearm during and in relation to a drug trafficking crime. See21 U.S.C. § 841 and 18 U.S.C. § 924(c). Jones submitted that the sentencing court plainly erred under Rule 32(h), Fed.R.Crim.Pr., by departing upward from the advisory sentencing guidelines range without providing him advance notice. The government conceded that this error required vacating Jones’s aggregate sentence and remanding for resentencing.

In a per curiam opinion, the Eleventh Circuit agreed that the sentencing court plainly erred under Rule 32(h), vacated and remanded for a resentencing.  See United States v. Lange, 862 F.d 1290, 1293 (11th Cir. 2017) when defendant fails to preserve a sentencing issue, issue is reviewed for plain error). Because Jones had failed to contemporaneously object to the sentencing court’s failure to give him notice before it imposed an upward departure from the sentencing guidelines range, the Eleventh Circuit applied the plain error standard of review. See United States v. Cingari, 952 f.3d 1301, 1305 (11th Cir. 2020) (for plain error to be found, there is an error, the error is plain, the error affects defendant’s substantial rights, and the error seriously affects the fairness, integrity, or public reputation of judicial proceedings).  The error is “plain” if “the legal rule [violated] is clearly established at the time the case is reviewed on direct appeal.” United States v. Hesser, 800 F.3d 1310, 1325 (11th Cir. 2015) (brackets added).

Federal Rule of Criminal Procedure 32(h) provides that:

Before the court may depart from the applicable sentencing range on a ground of identified for departure either in the presentence report or in a party’s prehearing submission, the court must give the parties reasonable notice that it is contemplating such a departure.

Rule 32(h)’s notice requirement applies only to departures, not variances. Irizarry v. United States, 553 U.S. 708, 716 (2008). “‘Departure’ is a term of art under the Guidelines and refers only to non-Guidelines sentences imposed under the framework set out in the Guidelines.” Id. at 714. A variance, “is a sentence imposed outside the guidelines range when the court determines that a guidelines sentence will not adequately further the purposes reflected in 18 U.S.C. § 3553(a).” See United States v. Hall, 965 F.3d 1281, 1295 (11th Cir. 2020).

In the sentencing court’s written statement of reasons, the portions of the form regarding variances were left blank. The court instead of the form regarding variances were left blank. The court instead characterized its actions as a “departure” in several places on the form and listed specific provisions in the  U.S. Sentencing Commission Guidelines Manual governing departure. The record indicated that the court departed, rather than varied, from guidelines. See Hall, 965 F.3d at 1295. Defendants must receive “notice . . . of the specific grounds for any upward departure that a sentencing court is considering.” United States v. Paslay, 971 F.2d 667, 673 (11th Cir. 1992) (citing Burns v. United States, 501 U.S. 129, 135 (1991). And, the required notice “must affirmatively indicate that an upward departure is appropriate based on a particular ground.” See Paslay,971 F.2d 673-674 n.11. The notice must identify and provide factual support for “each and every ground offered in support of an upward departure…within a ‘reasonable’ amount of time prior to the sentencing hearing.” Id. (emphasis added). Belated notice of a departure during the sentencing hearing is “more a formality than a substantive benefit” and it is therefore “inherently unreasonable” even when the facts of the case are not in dispute. United States v. Valentine, 21 F.3d 395, 398 (11th Cir. 1994) (quotation marks omitted).

The Eleventh Circuit concluded that the sentencing court committed plain error because it simply did not provide Jones with notice of a contemplated upward departure before the sentencing hearing as required pursuant to Rule 32(h), supra. The presentence investigation report did not identify factors that would warrant an upward departure, and the government neither moved for an upward departure nor made any filing prior to sentencing identifying any basis for such a departure. Jones’s defense was sandbagged by the sentencing judge, as there was no reason to anticipate that the court might depart. The court’s late notice of its intent to depart upward during the sentencing hearing clearly failed to comply with Rule 32(h). Thus, its failure to give advance notice was plainly erroneous. See Hesser, 800 F.3d at 1324.

Moving to the question of whether the error affected the defendant’s substantial rights, the Eleventh Circuit found that there was “a reasonable probability of a different result absent the error.” Hesser, 800 F.3d at 1325. Based on the comments made by the court during the sentencing hearing, it apparently based the upward departure on §§ 5K2.10, 5K2.8, 5K2.14 of the U.S. Sentencing Commission Guidelines Manual, and Jones identified multiple arguments that he would have raised in objection to the upward departure had he received notice. Jones would have argued that § 5K2.10 does not allow for an upward departure because that particular provision permits only downward departures. Jones would have also argued that his conduct did not present the type of unusually heinous, cruel, brutal, or degrading conduct required under § 5K2.8, and he would have also argued that his offense conduct lacked sufficient effect on public health or safety to justify an upward departure under § 5K2.14. Jones’s inability to present these objections to the upward departure affected substantial rights because his resulting aggregate sentence was almost twice as onerous as his prescribed sentencing guidelines range. See Hesser, 800 F.3d at 1325; Valentine, 21 F.3d at 398.

As to the final prong of the analysis, the Eleventh Circuit followed its precedent establishing that the sentencing court’s error affected the fairness and integrity of the sentencing. See United States v. Jones, 1 F.3d 1167, 1170 (11th Cir. 1993) (district court failure to give notice under Rule 32 “was a failure so obvious and substantial that it seriously affected the fairness and integrity of his sentencing hearing.”) Noting that, while “the judge might well have reached the same decision about an upward departure,” the reason for giving prior notice to a defendant is to make sure that “a decision as critical as an upward departure will be tested by the adversarial process.” Id. Jones was entitled to prior notice so that his defense lawyer could prepare and submit arguments contesting the proposed upward departure. The district court’s failure to provide notice before the sentencing affected the fairness of the proceedings.

The district court departed upward without the backing of the presentence investigation report, any government filing, or any prior notice of such a possibility, and so it plainly erred. The Eleventh Circuit vacated Jones’s aggregate sentence and remanded his case for resentencing, but one must wonder why the government failed to concede the error until the appeal.

Mr. Jones had the benefit of able criminal defense lawyers who exposed a federal court judge for committing “plain error” in failing to give prior notice as required by Rule 32(h), which offended the fairness and integrity of the adversarial process.