Defendant’s failure to object forfeits right to appeal district court’s lack of notice of intent to vary from sentencing guidelines

SENTENCING United States v. Atencio, No. 05-2279, ___ F.3d ___ (10th Cir. Jan. 17, 2007)(New Mexico). Appeal of sentence for assault resulting in serious bodily injury in violation of 18 U.S.C. §§ 113(a)(6) and 1153. HELD: (1) District court erred by failing to give advance notice of its intent to vary upward from sentencing guidelines range. Rule 32(h) of Federal Rules of Criminal Procedure applies to sentencing variances as well as sentencing departures and requires courts to give advance notice of intent to sentence above or below sentencing guidelines range. (2) Defendant forfeits right to appeal Rule 32 notice error by failing to object. Where defendant fails to object to lack of Rule 32 notice at time of sentencing, lack of notice is reviewed for plain error on appeal. (3) District court committed plain error by failing to follow Rule 32(i)(3)(B), requiring court to rule on disputed or controverted matters in presentence report. Because defendant’s characterization of single instance of abuse of victim in addendum to presentence report controverted depiction of regular abuse in body of presentence report, district court plainly erred in relying on allegedly regular abuse in varying sentence upward but failing to resolve conflict. Error deprived defendant of substantial due process right to ruling on disputed issue that may have undermined significant basis for variance and resulted in lower sentence. Furthermore, adoption of contradictory factual statements at sentencing also seriously affects fairness, integrity, and pubic reputation of judicial proceedings. Read the opinion here.