Friday, September 28, 2007

District Court's Failure to Provide Notice of Above Advisory Guideline Sentence Does Not Constitute Due Process Violation

In United States v. Ausburn, No. 06-2250 (3d Cir. September 10, 2007), the Third Circuit held that a district court’s failure to provide notice of its intention to impose a sentence above the advisory guideline range (in this case more than double the high end of the guideline range) does not violate due process. However, the Court also held that the district court’s failure to provide a sufficient statement of reasons explaining the significant upward variance rendered the sentence unreasonable. The sentence, therefore, was vacated and the matter remanded for re-sentencing.

Ausburn was a police detective who, in his capacity as such, came into contact with a fourteen year old girl whose family permitted a relationship between the two for Ausburn to act as a "role model" and "positive influence" in the girl’s life. The relationship soon turned sexual and lasted nearly two years. When Ausburn was promoted to chief of police, e-mails referring to the relationship were found in the desk at his old work station and turned over to postal inspectors. When confronted by the inspectors, Ausburn admitted having had a sexual relationship with the girl and having used e-mail and telephone communications to further that relationship. He later pled guilty to a criminal information charging a violation of 18 U.S.C. § 2422(b). At Ausburn’s request, the district court permitted the Presentence Report to be prepared prior to the change of plea hearing so the change of plea and sentencing could take place at the same time.

Using the 2002 version of the Sentencing Guidelines, the PSR recommended, and the district court adopted, an advisory guideline range of 57-71 months. Defense counsel argued that a hybrid of both the 2002 and 2004 Guidelines should have been applied resulting in a lower sentencing range. The Court of Appeals rejected that argument noting that the Guidelines manual in effect on a particular date is to be applied in its entirety. U.S.S.G. § 1B1.11(b)(2). After listening to the victim’s father and the victim’s guardian, counsel and Ausburn addressed the district court. Of particular relevance, counsel indicated that in a very recent case involving a sexual offense against a minor the very same district judge imposed a sentence of forty-seven months and that another judge on the same district court recently imposed a sentence of thirty months in a case involving filming of child pornography with motion-activated cameras. Accordingly, counsel argued that "the goal of uniform sentencing" and "apparent fairness" warranted a sentence below the advisory guideline range. The Government gave a brief response requesting a within guideline sentence. The district court sentenced Ausburn to 144 months, more than double the high end of the guideline range.

On appeal, Ausburn argued that due process required the district court to give prior notice of its intention to impose so drastic an upward variance and that the sentence was unreasonable. Addressing the due process argument, the Court of Appeals stated that: "due process in criminal sentencing requires that a defendant receive notice of, and a reasonable opportunity to comment on, (a) the alleged factual predicate for his sentence and (b) the potential punishments which may be imposed." The Court found that Ausburn was well aware of the factual predicates for his sentence through the PSR. Additionally, he received adequate notice of the potential punishments at the change of plea hearing. Furthermore, the Court indicated that after United States v. Booker, the factors that a district court must consider at sentencing, viz., those set forth in 18 U.S.C. § 3553(a), are clear. Relying on its earlier decision in United States v. Vampire Nation, 451 F.3d 189 (3d Cir. 2006), the Court also rejected Ausburn’s argument that the holding in United States v. Burns, 501 U.S. 129 (1991), that under the then existing version of Fed.R.Crim.P. 32, which was later amended to incorporate the holding in Burns, a district court must give advance notice of an intention to impose an upward departure from the Guidelines, should be extended to impositions of upward variances. The Court recognized that both Burns and Vampire Nation were rule interpretation cases but held that there was no reason to vary their result in the context of Ausburn’s analogous due process claim. The Court of Appeals, did however, leave room for a due process argument in a situation where a district court would fail to give advanced notice of an upward variance where, for example, a victim or witness may allege theretofore unrevealed facts and the defendant was left unable to respond due to short notice.

Although Ausburn’s due process argument was rejected, the Court of Appeals did find that his sentence was unreasonable because the district court failed to provide sufficient reasons on the record to justify its sentence. The Court of Appeals found that the district court did not address counsel’s argument regarding two similar cases that went to sentencing before the some court shortly before Ausburn or give meaningful consideration for the need to avoid unwarranted sentencing disparities. The Court also indicated that "the farther a sentence varies from the advisory guidelines range, the more compelling the judge’s reasons must be." Since the district court did not provide a record sufficient to justify the sentence, it was vacated and the matter remanded.

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The District Court's indication of the sentence it would impose before the defendant allocuted was not reversible plain error.

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