No prior notice to defendant required, rules 7th Circuit.

• Author: Ziemer, David

Byline: David Ziemer

A sentence that goes above the federal guidelines does not require prior notice to the defendant, the Seventh Circuit held on July 19. Thomas Vitrano pleaded guilty to possessing a firearm as a felon and possessing a firearm while subject to a domestic abuse injunction, and was sentenced to 120 months in prison. After the government successfully appealed, he was resentenced to 360 months by U.S. District Judge Rudolph T. Randa, although the guideline range was 235-293 months. At the sentencing hearing, the government presented evidence that Vitrano had sent a pipe bomb to a former girlfriend for her birthday, that three former girlfriends had obtained restraining orders against him, and that he had beaten his first wife. Vitrano appealed, but the Seventh Circuit affirmed, in a decision by Judge Diane Wood. The court first concluded that it was permissible for the sentencing court to consider the unrelated acts of violence. Although such information could not be used to calculate the guideline range, because it is not part of the same course of conduct, once the guideline range was determined, it was permissible for the court to consider the other violence. The court also found that it was not prosecutorial vindictiveness to introduce the evidence of unrelated violence that was not presented at the first sentencing, distinguishing North Carolina v. Pearce, 395 U.S. 711 (1968). Because it was the government that appealed the first sentence, rather than the defendant, and Pearce is intended only to protect defendants' right to appeal, the court held Pearce inapplicable. Finally, the court rejected Vitrano's argument that the government failed to give defense counsel specific notice of the rationale it intended to use in arguing or an "upward departure." The court noted that it has previously held that, post-Booker, the concept of upward departures is "obsolete." U.S. v. Arnaout, 431 F.3d 994, 1003 (7th Cir. 2005). Accordingly, the court affirmed.

xcase: U.S. v. Vitrano, No. 06-1512. xissues: Can a court impose an above-guideline sentence without prior notice to the defendant that it may do so? xholdings: Yes. Rule 32(h) is no longer applicable, post-Booker.

Rule 32(h) of the Federal Rules of Criminal Procedure provides: "Before the court may 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, the court must give the...