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United States v. Orlando

January 23, 2009

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
CARL ORLANDO, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Central District of California. A. Howard Matz, District Judge, Presiding. D.C. No. CR-06-00308-AHM-001.

The opinion of the court was delivered by: Farris, Senior Circuit Judge

FOR PUBLICATION

OPINION

Submitted December 9, 2008*fn1 -- Pasadena, California

Before: Jerome Farris and Kim McLane Wardlaw, Circuit Judges, and William W Schwarzer,*fn2 District Judge.

Carl Orlando appeals his 40 month sentence and $30,000 fine following his guilty plea to one count of tax evasion. We affirm the sentence but amend the written judgment to reflect the $30,000 fine imposed at oral sentencing.

I. The Rule 32(h) Notice Requirement does not Apply

Under United States v. Irizarry, ___ U.S. ___, 2008, 128 S.Ct. 2198 (2008), Orlando's 40-month sentence was not a "departure" from the 27-33 month range specified by the sen- tencing guidelines, but a "variance." The notice requirement in Fed. R. Crim. P. 32(h) does not apply.

II. The District Court did not Abuse Its Discretion by Failing to Grant a Continuance Before Announcing the Variance

A district court's grant or denial of a continuance is reviewed for abuse of discretion even where, as here, no motion for continuance was made. United States v. Moreland, 509 F.3d 1201, 1211 (9th Cir. 2007).

[1] Relying on language in Irizarry, Orlando argues that the court should have granted a continuance sua sponte. Irizarry suggests that in the unusual instance where the factual basis for a variance comes as a surprise, "[t]he . . . appropriate response to such a problem is . . . for a district judge to consider granting a continuance when a party has a legitimate basis for claiming that the surprise was prejudicial." Irizarry, 128 S.Ct. at 2203. However, the majority also indicated that "in most cases" requiring advance notice of a contemplated variance "may create unnecessary delay" by forcing a continuance even though the content of notice "would not affect the parties' presentation of argument and evidence." Id. Irizarry established that a sentencing court abuses its discretion when it imposes an upward variance 1) based on facts that amount to a prejudicial surprise; 2) without considering a continuance; 3) where advance notice might have affected the parties' presentations of evidence. Orlando fails on all three elements.

[2] Orlando's sentence may have been a surprise, but the factual basis for it was not. As Irizarry explains, "[g]arden variety considerations of culpability, criminal history, likelihood of re-offense, seriousness of the crime, [etc.] . . . should not generally come as a surprise to trial lawyers who have prepared for sentencing." Id. (quoting United States v. Vega-Santiago, 519 F.3d 1, 5 (1st Cir. 2008)). The district court relied upon these types of "garden variety considerations": the defendant's long pattern of criminal history, the fact that he committed the current offense while on supervised release from previous custody, his disrespect for the law, the seriousness of his crime, the need to protect the public, and the valuable deterrent effect of a stiff tax evasion sentence.

[3] The record also indicates that the district court considered and rejected the possibility of delaying sentencing. Further, Orlando does not explain how a continuance would have affected his presentation of evidence, except by giving counsel "an opportunity to prepare for and address the court's concerns." Since a reasonably prepared lawyer would already have been equipped ...


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