Federal Sentencing Guidelines -- The Requirement of Notice for Upward Defense

• NCJ Number: 137228
• Journal: Journal of Criminal Law and Criminology Volume: 82 Issue: 4 Dated: (Winter 1992) Pages: 1029-1053
• Author(s): T Gilson
• Date Published: 1992
• Length: 35 pages
• Publication Format: Article
• Publication Type: Legislation/Policy Analysis
• Language: English
• Country: United States of America

Annotation

In Burns v. United States, the U.S. Supreme Court ruled that a district court must provide reasonable notice to a defendant of its intention to impose a harsher sentence than that recommended by the Federal Sentencing Guidelines. Furthermore, the district court must articulate the specific grounds on which it intends to justify its upward departure.

Abstract

The majority opinion argued that Rule 32 of the Federal Rules of Criminal Procedure require advance notice of a higher sentence. However, this author maintains the guidelines actually grant discretionary power of departure to the district judge and thereby notify defendants of the possibility of a higher sentence. Thus, the Court's ruling is incompatible with the concept of judicial neutrality, permits the Court to second-guess Congress and create procedural problems, and is unnecessary as the absence of notice does not infringe on the defendant's right to due process of law. 155 notes