In U.S. v. Irizarry, No. 05-11718 (Aug. 1, 2006), the Court held that Fed. R. Crim. P. 32(h), which requires sentencing courts to give defendants advance notice of a possible imposition of an upward departure from the Guidelines range, does not apply to sentence enhancement imposed on the basis of 18 U.S.C. § 3553.
At sentencing, without advance notice, the court imposed a six-month variance above the Guideline range. The defendant pled guilty to making a threatening interstate communication to his wife, in violation of 18 U.S.C. § 875(c), and the court imposed a higher sentence because it concluded that additional protection was warranted because the defendant remained determined to threaten his wife.
Joining three other Circuits on this point, the Court held that Rule 32(h) does not apply to post-Booker variances, because parties are on notice that a court can select a sentence between the statutory maximum and minimum.