Notice of Variance Must Prompt Parties to Make Arguments

US v. Fancher: Fancher was investigated by police after reports that he had sexually molested a nine-year-old girl. During the investigation, authorities uncovered numerous images of child pornography in Fancher's home. Fancher pleaded guilty to one count of possession of child porn. Due to a previous conviction for sexual abuse of a minor, Fancher's statutory sentence was between 15 and 40 years in prison.

Prior to sentencing, the probation officer calculated Fancher's Guideline range to be 180-210 months. The PSR mentioned "mitigating" factors and also that "[g]iven the defendant's criminal history and the ages [of] and relationship to his victims[,] the Court may which to consider a sentence pursuant to [3553(a)] to meet the objectives of sentencing." After the PSR was completed, the probation officer was contacted by the mother of a 16-year-old girl to whom Fancher had been writing letters while incarcerated proclaiming his love for her and requesting (among other things) that she send him pictures. At sentencing, Fancher argued for a 180-month sentence, while the Government sought a 210-month sentence. Concluding that Fancher was beyond rehabilitation, the district court imposed the maximum sentence of 480 months in prison.

On appeal, the Fourth Circuit vacated Fancher's sentence. Applying US v. Spring, 305 F.3d 276 (4th Cir. 2002), the court held that while the language in the PSR was sufficient to meet the notice requirements of Rule 32(h), it was not adequate to prompt the parties to present arguments about the propriety of a variance. In Spring's words, the PSR "informed counsel that it needed to prepare arguments on this issue, but not that they needed to present them." Applying harmless error review (Fancher objected to the lack of notice after sentence was imposed) and concluding that, based on post-sentencing proffers made by counsel, that the district court's concerns would have been addressed (if not alleviated), the court held that the error was not harmless. Fancher's case was remanded for resentencing.

Nice work by the FPD office in the Northern District of WV on the win!