United States v. Gilmore, Docket No. 05-6195-cr, 2006 WL 3530539 (2d Cir. Dec. 8, 2006)
As detailed in this post, the Second Circuit in United States v. Anati applied the principles of Rule 32 of the Federal Rules of Criminal Procedure in finding that sentencing courts are required to provide defendants with notice of an intent to use the discretionary authority provided by Booker to impose, sua sponte, a "non-Guidelines sentence adverse to the defendant" because of the "significant similarity between an intent to depart and an intent to impose a non-Guidelines sentence." In Gilmore, the Second Circuit takes the principle set forth in Anati one step further, finding that it is plain error for a sentencing court not to give such notice.
Reviewing the facts, it seems that Gilmore was in for quite a surprise at sentencing. Gilmore's advisory Guidelines range was 97 to 121 months imprisonment, and the offense for which he pled guilty carried a 15 year mandatory minimum. The sentencing court, however, sentenced Gilmore to 30 years imprisonment -- 15 years longer than the statutory minimum and 20 years longer than the top of the applicable advisory Guidelines range. If the same sentence is re-imposed following remand (and proper notice), Gilmore will surely appeal its reasonableness.
Has anyone seen a post-Booker sentence that varied upward so much from the advisory Guidelines?