To be noticed or not to be noticed - that is the question

by Marc David Seitles
For anyone who was wondering whether a defendant and his counsel had to be notified if the district court was going to grant a variance above the advisory guidelines range - the answer is no. Today, in US v. Irizzary, No. 05-11718 (11th Cir. Aug. 1, 2006), the Eleventh Circuit held that "the district court was not required to give Defendant advance notice before imposing a sentence above the advisory guidelines range based on the court's determination that sentences within the advisory guidelines range did not adequately address section 3553(a) sentencing factors."

On a sidenote, who created the term "variance"? A district court shall impose a sentence sufficent but not greater than necessary after considering all the factors set forth 18 USC 3553(a) - and that's it. The sentencing court renders its decision after considering the required statuory language. Therefore, should any decision post Booker truly be called a "variance"? Thoughts?