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Rule 32(h) notice required for "departures" but not "variances"

In US v. Vampire Nation (Banks), No. 05-1715 (June 20, 2006), the 3rd Circuit addressed a number of issues. First, the Court ruled that the Rule 32(h) requirement that the district court give advance notice that it is contemplating a departure from the guidelines before applying such a departure does not apply to a "variance" from the guidelines based on the sentencing factors set out in 18 USC 3553(a). Noting the circuit split on the issue, the Court ruled that Rule 32(h) was meant to apply only to traditional "departures" allowed under the guidelines themselves, and not to "variances" from the guidelines now permitted under Booker. Emphasizing the "advisory" nature of the guidelines post-Booker, the Court reasoned that application of the Rule 32(h) notice requirement to variances "would elevate the advisory sentencing range to a position of importance that it no longer can enjoy." Since the notice requirement does still apply to departures, however, the Court added that "district courts should be careful to articulate whether a sentence is a departure or a variance from an advisory Guidelines range."

The Court also ruled that the district court had statutory authority under 28 usc 2461(c) to issue an in personam forfeiture judgment against the defendant, and that the amount of this judgment could be based on the proceeds of the mail fraud, without being limited to the amount actually in defendant's possession at time of sentencing. Addressing other issues, the Court found the evidence was sufficient, that the district court's jury instructions did not constructive amend the indictment, that the witness tampering instruction was proper, that defendant's request to represent himself was not sufficiently clear so as to trigger a full inquiry by the district court, and that there was no need for the judge to have recused himself sua sponte because of a judicial misconduct complaint defendant filed before sentencing.

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