Friday, December 08, 2006

Failure to Provide Prior Notice of Upward Variance Constitutes Plain Error

United States v. Gilmore, Docket No. 05-6195-cr (2d Cir. Dec. 8, 2006) (Miner, Pooler, Katzmann) (per curiam): In United States v. Anati, 457 F.3d 233 (2d Cir. 2006), the Circuit held that a district court must give reasonable notice of its intent to exceed the advisory Guidelines range (via consideration of the ยง 3553(a) factors) prior to sentencing. Here, the Court extends Anati and holds that failure to provide the notice required by Anati constitutes "plain error" warranting reversal and remand for resentencing, even where the defendant failed to object to the lack of notice at sentencing.


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