United States v. Pettus, No. 05-4136-CR, 2006 WL 328267 (2d Cir. Feb. 13, 2006)
Pettus plead guilty to escaping from custody, in violation of 18 U.S.C. 751(a). Pettus's Guidelines range was 4 to 10 months. But the district court sentenced Pettus to 18 months. The district court, however, did not specify whether the 18 month sentence reflected an upward departure within the Guidelines scheme or a non-Guidelines sentence as authorized by Booker. And the district court did not give Pettus notice of its intent to "depart from the applicable sentencing range on a ground not identified for departure either in the presentence report or in a party's prehearing submission," as required by Rule 32(h) of the Federal Rules of Criminal Procedure. Pettus, however, never protested the district court's failure to give him Rule 32(h) notice.
Accordingly, the Second Circuit analyzed Pettus's appeal for plain error (which it did not find) and thereby dodged the question of whether Rule 32(h) applies to post-Booker sentences -- a topic that is the subject of debate in other circuits. Compare United States v. Hawk Wing, No. 05-2263, U.S. App. LEXIS 262, at *6-12 (8th Cir. Jan. 6, 2006) (applying Rule 32(h) notice requirement to non-Guidelines sentence without comment) and United States v. Simmerer, No. 05-11144, 2005 U.S. App. LEXIS 24787, at *7-8 (11th Cir. Nov. 16, 2005) (finding that lack of notice did not constitute plain error because "[t]here is no precedent from this court or from the Supreme Court establishing that Fed. R. Crim. P. 32 applies to a post-Booker upward variance").
The Second Circuit surely would have vacated Pettus's sentence and remanded Pettus's case back to the district court for resentencing even without the provisions of Rule 32(h) if the district court had imposed a sentence below (rather than above) the Guidelines range and failed to specify whether the sentence reflected a downward departure within the Guidelines scheme or a non-Guidelines sentence as authorized by Booker. Indeed, such a result would be wholly consistent with the action in circuit courts around the country, in which sentences below the Guidelines have been routinely vacated as "unreasonableness" even where the grounds for the below Guidelines sentence have been stated. The Second Circuit should have found that Rule 32(h) applies post-Booker, and should have vacated Pettus's sentence and remanded for resentencing, at which time Pettus could have prepared to respond to any grounds upon which the district court might consider a sentence higher than that proscribed by the Guidelines.