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U.S. v. COHN

United States District Court, S.D. Illinois


May 2, 2005.

UNITED STATES OF AMERICA, Plaintiff,
v.
PHILIP COHN, Defendant.

The opinion of the court was delivered by: MICHAEL J. REAGAN, District Judge

MEMORANDUM and ORDER

Under pre-Booker sentencing law,*fn1 district courts were required to notify the parties when contemplating a departure from the applicable guideline range, if that departure was based on a ground not identified in the presentence report ("PSR") or the parties' pre-sentencing hearing submissions. See Burns v. United States, 501 U.S. 129, 138-39 (1991).

Indeed, FEDERAL RULE OF CRIMINAL PROCEDURE 32(h) 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 parties reasonable notice that it is contemplating such a departure. The notice must specify any ground on which the court is contemplating a departure.
While the sentencing guidelines, post-Booker, are merely advisory, this Court still finds Rule 32's notice-of-intent-to-depart provision consistent with due process and fundamental fairness.

  Accordingly, Defendant Philip Cohn and the Government are NOTIFIED that the Court may vary upward from the applicable guideline range, in keeping with the Court's obligation to fully consider all the factors delineated in 18 U.S.C. ยง 3553. The potential upward departure is based upon the following grounds:

(1) Defendant Cohn's conduct outlined in Paragraphs 74 and 75 of the PSR, which was not considered in the guideline computation;
(2) Defendant Cohn's conduct outlined in Paragraph 77 of the PSR, which was not considered in the guideline computation; and
(3) Defendant Cohn's conduct outlined in Paragraphs 78 through 80 of the PSR, which was not considered in the guideline computation.
  Sentencing remains set on Friday, May 20, 2005 but will commence at 9:30 am rather than 10:00 am.


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