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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-10455
Non-Argument Calendar
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D.C. Docket No. 1:15-cr-20040-FAM-2
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOHN CROWE,
Defendant - Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(October 11, 2017)
Before ROSENBAUM, JULIE CARNES, and JILL PRYOR, Circuit Judges.
PER CURIAM:
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John Crowe was indicted on charges of health care fraud and conspiracy to
commit health care and wire fraud in connection with a scheme to defraud
Medicare and Medicaid. See 18 U.S.C. §§ 1343, 1347 & 1349. He pled guilty to
the conspiracy offense under a written plea agreement, and the government
dismissed the remaining counts.
Crowe’s presentence investigation report (“PSR”) calculated an advisory
guideline sentencing range of 41 to 51 months of imprisonment. At sentencing,
however, the district court denied Crowe a reduction for acceptance of
responsibility, which had the effect of increasing his guideline range to 57 to 71
months. The court then varied upward from that newly calculated guideline range
and sentenced Crowe to 84 months of imprisonment. On appeal, Crowe does not
challenge the substance of these decisions. Instead, he contends that resentencing
is warranted because the district court procedurally erred by sentencing him above
the guideline range without prior notice.
Where the defendant at sentencing fails to object to a procedural error, such
as the lack of notice of an upward departure, we generally review for plain error
only. United States v. Vandergrift, 754 F.3d 1303, 1307 (11th Cir. 2014). Under
plain-error review, we may not correct an error unless it is obvious and clear under
existing law. United States v. Dortch, 696 F.3d 1104, 1112 (11th Cir. 2012). We
review for plain error because Crowe did not specifically object to the court’s
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failure to give notice before going above the guideline range, but, regardless, no
error, plain or otherwise, occurred.
Crowe maintains that the district court was required to provide advance
notice of its intent to sentence him above the guideline range. He relies on Rule
32(h) of the Federal Rules of Criminal Procedure, which states, “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.” Crowe’s argument, however, ignores the critical difference between a
“departure” and a “variance.”
Rule 32(h) was promulgated in response to the Supreme Court’s decision in
Burns v. United States, 501 U.S. 129 (1991), which held that a court could depart
from the then-mandatory guidelines only if the defendant received notice of any
contemplated departure. Irizarry v. United States, 553 U.S. 708, 709 (2008). After
the Court invalidated the mandatory features of the guidelines in United States v.
Booker, 543 U.S. 220 (2005), allowing district courts to exercise their discretion to
impose a sentence outside the guideline range based on the sentencing factors in 18
U.S.C. § 3553(a), a circuit split arose on the question of whether Rule 32(h) also
applied to variances from the guideline range under Booker. See Irizarry, 556 U.S.
at 713 & n.1.
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In Irizarry, the Supreme Court resolved the circuit split and held that Rule
32(h)’s notice requirements did not apply to a sentence set outside the advisory
guideline range based not on a guideline provision but on the sentencing factors
under 18 U.S.C. § 3553(a). Id. at 713–16. The Court explained that the reasons
for its holding in Burns “did not survive” Booker. Id. at 713. In an advisory
guideline system, “neither the Government nor the defendant may place the same
degree of reliance on the type of ‘expectancy’ that gave rise to a special need for
notice in Burns.” Id. at 713–14. Nor does Rule 32(h) “apply to 18 U.S.C. § 3553
variances by its terms.” Id. at 714. Rather, the rule applies to a “departure,” which
is “a term of art under the Guidelines and refers only to non-Guidelines sentences
imposed under the framework set out in the Guidelines.” Id. Accordingly, a
district court is not required to give notice before varying from the guideline range
based on the § 3553(a) factors. See id. at 714–15.
So, at bottom, this case comes down to whether Crowe’s sentence outside
the guideline range was the result of a departure or a variance. If the court applied
a departure, Crowe was entitled to notice under Rule 32(h). But if the court
applied a variance, no notice was required, even if “[s]ound practice dictates that
judges in all cases should make sure that the information provided to the parties in
advance of the hearing, and in the hearing itself, has given them an adequate
opportunity to confront and debate the relevant issues.” Id. at 716.
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To determine whether the district court applied a departure or a variance,
“we consider whether the district court cited to a specific guideline departure
provision and if the court’s rationale was based on its determination that the
Guidelines were inadequate.” United States v. Kapordelis, 569 F.3d 1291, 1316
(11th Cir. 2009). In Kapordelis, we held that the court imposed a variance rather
than a departure where the court did not cite a specific departure provision in the
guidelines, and it based its rationale on “the § 3553(a) factors and its finding that
the Guidelines were inadequate.” Id.
Here, regardless of the standard of review, the district court did not err in
sentencing Crowe above the guideline range without giving him prior notice
because the court applied an upward variance rather than a departure. As in
Kapordelis, the court did not cite a specific departure provision, and it based its
rationale on the § 3553(a) factors and its findings that the guideline range was
inadequate. See id. Indeed, the court expressly described its decision as an
“upward variance,” and it explained that the variance was justified “by the
defendant’s actions, the nature of the offense, the characteristics of the defendant[,]
and the fact that his prior record for distribution of cocaine has not been considered
in the criminal history category.” Accordingly, the district court was not required
to provide Crowe with advance notice before sentencing him outside the guideline
range. We therefore affirm his sentence.
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AFFIRMED.
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