In the Courts

Seventh Circuit Finds Rule 32(h) 'Obsolete' in the Wake of Booker

In United States v. Walker, No. 05-1812 (7th Cir. May 17, 2006), the Seventh Circuit held that Rule 32(h) of the Federal Rules of Criminal Procedure, which requires that the defendant receive notice that the sentencing court is contemplating a departure from the Sentencing Guidelines, is obsolete in the post-Booker era.

The defendant appealed his above guidelines sentence for assault on a federal officer on the grounds that the district court violated Rule 32(h) by not giving him reasonable notice before imposing an upward departure from the Sentencing Guidelines. The Seventh Circuit reasoned that because United States v. Booker , 543 U.S. 220 (2005), made the Guidelines advisory, the concept of departure has become obsolete. The Circuit Court noted that above guidelines sentences are no longer an unexpected departure from a generally binding range. Rather, all defendants are on notice that sentencing courts have discretion to impose a sentence that is reasonable based on the factors set forth in 18 U.S.C. ' 3553(a). Thus the concern that underlies Rule 32, that defendants should not be unfairly surprised by a departure, no longer applies and sentencing courts are not required to give notice of upward departures.