Advance Notice Still Required Post-Booker for Upward Variance/Departure

Good news for the defense on an issue that has divided the circuits. Federal district courts in the Sixth Circuit must give advance notice to defendants under Rule 32(h), Fed. R. Crim. P., if they are considering imposing a sentence above the now advisory guideline range, even after the Supreme Court’s Booker decision which rendered the guidelines advisory rather than mandatory. This is not the case in all circuits. The 2-1 published decision can be found at: United States v. Collins, 469 F.3d 572 (6th Cir. 2006). Congratulations to Dennis G. Terez of the Federal Public Defenders office in Cleveland, Ohio, for making good law for the defense.