Fifth Circuit Weighs in on Split re Application of Rule 32(h) and Burns to Non-Guideline Sentences Post-Booker

Per U.S. v. Mejia-Huerta, --- F.3d ----, 2007 WL 610973 (5th Cir. Feb. 28, 2007):

Since United States v. Booker, 542 U.S. 220 (2005), an incongruent pattern of caselaw has developed among those federal circuits that have considered whether Burns v. United States, 501 U.S. 129 (1991) or Fed. R. Crim P. 32(h) continue to apply to non-Guidelines sentences. The Third, Seventh, Eighth, and Eleventh Circuits have answered in the negative; the Second, Fourth, Ninth, and Tenth Circuits have answered in the affirmative. In an unpublished and thus non-binding opinion, we have previously determined that a sentencing court's failure to provide notice of its intention to impose a non-Guidelines sentence post-Booker does not constitute plain error, but we have expressly declined to rule on whether such failure constitutes error. We now enter the fray, agreeing with the circuits that have concluded that neither Burns nor Rule 32(h) apply to non-Guidelines sentences and thereby disrupt the equipoise of the circuit split on this issue.