2007 Utah L. Rev. 861, *936

Page 54 of 78 2007 Utah L. Rev. 861, *936 intended to pass a law establishing "fair play for crime victims, meaningful participation of crime victims in the justice system, protection against a government that would take from a crime victim the dignity of due process ... ." 4° By building victims into the Guidelines process, my proposal would also provide an important procedural protection to defendants. My proposed amendment to Rule 32(f) would require that the victim's attorney or the prosecutor would raise any reasonable objection to the presentence report before the sentencing hearing, so that it could be discussed at a presentence conference and then presented in an organized fashion to the sentencing judge. I would also require either the victim's attorney or the prosecutor to give notice to defense counsel and the court where an upward departure argument might rest on any information provided by the victim. +*° Setting up the procedures in this way creates an orderly process for victim objections to affect sentencing - with fair notice to the defense. Otherwise, the court - and the defendant - might hear for the first time at sentencing that the prosecution was considering an upward departure based on information in the victim impact statement. [*937] The courts of appeals have split on the need for advance notice of an upward departure based on victim impact statements. In United States v. Dozier, the Tenth Circuit held that a district court is required to give notice to a defendant before departing upward from the advisory guideline range based on victim impact statements. 42” The breadth of that holding may be limited, however, by unusual facts: the presentence report did not identify victim impact information as a possible basis for an upward departure and the government conceded that a sentencing remand was appropriate. The Third Circuit has expressly declined to follow Dozier. In United States v. Vampire Nation, +78 the Third Circuit held that, in light of the Supreme Court's 429 4 defendant is always on notice that a judge might find a sentencing factor decisions making the Guidelines advisory, calling for a sentence higher than that advised by the Guidelines. 47° With respect to victim impact statements, the Third Circuit highlighted the fact that victim impact statements at the sentencing hearing might provide a new, previously undisclosed ground for an upward (or downward) departure: The right of victims to be heard is guaranteed by the Crime Victims! Rights Act ("CVRA") ... . The right is in the nature of an independent right of allocution at sentencing. See /8 U.S.C. § 377/(a)(4) (affording victims a “right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding"). Under the CVRA, courts may not limit victims to a written statement. See Kenna v. United States District Court, 435 F.3d 1011, 1017 (9th Cir. 2006) (Kozinski, J.) ("Limiting victims to written impact statements, while allowing the prosecutor and the defendant the opportunity to address the court, would treat victims as secondary participants in the sentencing process. The CVRA clearly meant to make victims full participants."). Given that it would be impossible to predict what statements victims might offer at sentencing, it would be unworkable to require district courts to provide advance notice of their intent to vary their discretionary 431 sentence based on victim statements that had not yet been made. The contrasting positions of the Tenth and Third Circuits is part of a larger disagreement between the circuits on the extent to which the notice requirements in the criminal rules continue to operate under the now-advisory Guidelines regime. 4°? #25 150 Cong. Rec. $4264 (daily ed. Apr. 22, 2004) (statement of Sen. Kyl) (emphasis added); see also Kenna v. U.S. Dist. Court, 435 F.3d 1011, 1017 (9th Cir. 2006). #26 See Cassell, Proposed Amendments, supra note 4, at 901-03. #27 444 F 3d 1215, 1217-18 (10th Cir. 2006). #8 451 F.3d 189 (3d Cir. 2006), cert. denied, 1278. Ct. 424 (2006). 429 See United States v. Booker, 543 U.S. 220, 222 (2004). 430 Vampire Nation, 451 F.3d at 196. 31 Td. at 197 n.4. 432 The Second, Fourth, and Ninth Circuits have ruled that Rule 32(h) continues to apply. See United States v. Anati, 457 F.3d 233, 236-37 (2d Cir. 2006); United States v. Davenport, 445 F.3d 366, 371 (4th Cir. 2006); United States v. Evans-Martinez, 448 F.3d 1163, 1167 (9th Cir. 2006). The Third, Seventh, Eighth, and Eleventh Circuits have held the opposite. See United States v. Irizarry, 458 F.3d 1208, 1212 DAVID SCHOEN HOUSE_OVERSIGHT_017689