United States District Court, S.D. Illinois
May 2, 2005.
UNITED STATES OF AMERICA, Plaintiff,
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. § 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
(2) Defendant Cohn's conduct outlined in Paragraph 77
of the PSR, which was not considered in the guideline
(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.