United States Sixth Circuit

Rule 32(h) of the Federal Rules of Criminal Procedure applies equally to Chapter 5 departures and 18 U.S.C. section 3553(a) variances. A sentence for threatening to harm the President of the United States and his family is vacated where: 1) although the district court correctly applied three-level enhancement under U.S.S.G. section 3A1.2, the sentence was unreasonable under Booker because the district judge failed to provide an adequate explanation for his imposition of a sentence with an upward variance; and 2) the district court plainly erred in failing to give the parties notice pursuant to Federal Rule of Criminal Procedure 32(h) that he was contemplating an upward variance on a ground not previously identified.

Appellate Information

• Decided 11/30/2006
• Published 11/30/2006

Judges

• Before: MOORE and GIBBONS, Circuit Judges;  SHADUR, District Judge.

Court

• United States Sixth Circuit

Counsel

• For Appellees:
  
• ARGUED:  Dennis G. Terez, Assistant Public Defender, Cleveland, Ohio, for Appellant.  Robert J. Becker, Assistant United States Attorney, Akron, Ohio, for Appellee.   ON BRIEF:  Dennis G. Terez, Assistant Public Defender, Cleveland, Ohio, for Appellant.  Robert J. Becker, Assistant United States Attorney, Akron, Ohio, for Appellee.