United States v. John Crowe, 711 F. App'x 556

John Crowe pled guilty to conspiracy to commit health-care and wire fraud related to a scheme defrauding Medicare/Medicaid; other counts were dismissed.
The PSR calculated an advisory guideline range of 41–51 months.
The district court denied an acceptance-of-responsibility reduction, raising the guideline range to 57–71 months.
The court then imposed an upward sentence to 84 months, explicitly calling its action an "upward variance."
Crowe did not object at sentencing to the lack of advance notice before the court exceeded the guideline range; he later appealed arguing Rule 32(h) required such notice.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Rule 32(h) required advance notice before the court sentenced above the Guidelines	Crowe: Rule 32(h) mandates reasonable notice of any contemplated sentence above the applicable Guidelines when not identified in the PSR or prehearing submissions	Government: After Booker, Rule 32(h) applies only to Guidelines "departures," not §3553(a) "variances," so no notice was required for a variance	Court: Affirmed — the sentence was an upward variance (not a departure), so Rule 32(h) notice was not required

Burns v. United States, 501 U.S. 129 (1991) (required notice for departures when Guidelines were mandatory)
Booker v. United States, 543 U.S. 220 (2005) (rendered Guidelines advisory and authorized §3553(a) variances)
Irizarry v. United States, 553 U.S. 708 (2008) (Rule 32(h) does not apply to §3553(a) variances)
United States v. Kapordelis, 569 F.3d 1291 (11th Cir. 2009) (distinguishing departures from variances based on citation of Guideline provisions and reliance on §3553(a) rationale)
United States v. Vandergrift, 754 F.3d 1303 (11th Cir. 2014) (plain-error review applies when defendant does not object to sentencing procedural errors)
United States v. Dortch, 696 F.3d 1104 (11th Cir. 2012) (describes plain-error standard)