[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 17-10455

Non-Argument Calendar

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D.C. Docket No. 1:15-cr-20040-FAM-2

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee,

 versus

JOHN CROWE, 

 Defendant - Appellant.

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Appeal from the United States District Court

for the Southern District of Florida

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(October 11, 2017)

Before ROSENBAUM, JULIE CARNES, and JILL PRYOR, Circuit Judges.

PER CURIAM: 

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John Crowe was indicted on charges of health care fraud and conspiracy to 

commit health care and wire fraud in connection with a scheme to defraud 

Medicare and Medicaid. See 18 U.S.C. §§ 1343, 1347 & 1349. He pled guilty to 

the conspiracy offense under a written plea agreement, and the government 

dismissed the remaining counts. 

Crowe’s presentence investigation report (“PSR”) calculated an advisory 

guideline sentencing range of 41 to 51 months of imprisonment. At sentencing, 

however, the district court denied Crowe a reduction for acceptance of 

responsibility, which had the effect of increasing his guideline range to 57 to 71 

months. The court then varied upward from that newly calculated guideline range 

and sentenced Crowe to 84 months of imprisonment. On appeal, Crowe does not

challenge the substance of these decisions. Instead, he contends that resentencing 

is warranted because the district court procedurally erred by sentencing him above 

the guideline range without prior notice. 

Where the defendant at sentencing fails to object to a procedural error, such 

as the lack of notice of an upward departure, we generally review for plain error 

only. United States v. Vandergrift, 754 F.3d 1303, 1307 (11th Cir. 2014). Under 

plain-error review, we may not correct an error unless it is obvious and clear under 

existing law. United States v. Dortch, 696 F.3d 1104, 1112 (11th Cir. 2012). We 

review for plain error because Crowe did not specifically object to the court’s 

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failure to give notice before going above the guideline range, but, regardless, no 

error, plain or otherwise, occurred. 

Crowe maintains that the district court was required to provide advance 

notice of its intent to sentence him above the guideline range. He relies on Rule 

32(h) of the Federal Rules of Criminal Procedure, which states, “Before the court 

may depart from the applicable sentencing range on a ground not identified for 

departure either in the presentence report or in a party’s prehearing submission, the 

court must give the parties reasonable notice that it is contemplating such a 

departure.” Crowe’s argument, however, ignores the critical difference between a 

“departure” and a “variance.” 

Rule 32(h) was promulgated in response to the Supreme Court’s decision in 

Burns v. United States, 501 U.S. 129 (1991), which held that a court could depart 

from the then-mandatory guidelines only if the defendant received notice of any 

contemplated departure. Irizarry v. United States, 553 U.S. 708, 709 (2008). After 

the Court invalidated the mandatory features of the guidelines in United States v. 

Booker, 543 U.S. 220 (2005), allowing district courts to exercise their discretion to 

impose a sentence outside the guideline range based on the sentencing factors in 18 

U.S.C. § 3553(a), a circuit split arose on the question of whether Rule 32(h) also 

applied to variances from the guideline range under Booker. See Irizarry, 556 U.S.

at 713 & n.1.

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In Irizarry, the Supreme Court resolved the circuit split and held that Rule 

32(h)’s notice requirements did not apply to a sentence set outside the advisory 

guideline range based not on a guideline provision but on the sentencing factors 

under 18 U.S.C. § 3553(a). Id. at 713–16. The Court explained that the reasons 

for its holding in Burns “did not survive” Booker. Id. at 713. In an advisory 

guideline system, “neither the Government nor the defendant may place the same 

degree of reliance on the type of ‘expectancy’ that gave rise to a special need for 

notice in Burns.” Id. at 713–14. Nor does Rule 32(h) “apply to 18 U.S.C. § 3553 

variances by its terms.” Id. at 714. Rather, the rule applies to a “departure,” which 

is “a term of art under the Guidelines and refers only to non-Guidelines sentences 

imposed under the framework set out in the Guidelines.” Id. Accordingly, a 

district court is not required to give notice before varying from the guideline range 

based on the § 3553(a) factors. See id. at 714–15.

So, at bottom, this case comes down to whether Crowe’s sentence outside 

the guideline range was the result of a departure or a variance. If the court applied 

a departure, Crowe was entitled to notice under Rule 32(h). But if the court 

applied a variance, no notice was required, even if “[s]ound practice dictates that 

judges in all cases should make sure that the information provided to the parties in 

advance of the hearing, and in the hearing itself, has given them an adequate 

opportunity to confront and debate the relevant issues.” Id. at 716.

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To determine whether the district court applied a departure or a variance, 

“we consider whether the district court cited to a specific guideline departure 

provision and if the court’s rationale was based on its determination that the 

Guidelines were inadequate.” United States v. Kapordelis, 569 F.3d 1291, 1316 

(11th Cir. 2009). In Kapordelis, we held that the court imposed a variance rather 

than a departure where the court did not cite a specific departure provision in the 

guidelines, and it based its rationale on “the § 3553(a) factors and its finding that 

the Guidelines were inadequate.” Id. 

Here, regardless of the standard of review, the district court did not err in

sentencing Crowe above the guideline range without giving him prior notice

because the court applied an upward variance rather than a departure. As in 

Kapordelis, the court did not cite a specific departure provision, and it based its 

rationale on the § 3553(a) factors and its findings that the guideline range was 

inadequate. See id. Indeed, the court expressly described its decision as an 

“upward variance,” and it explained that the variance was justified “by the 

defendant’s actions, the nature of the offense, the characteristics of the defendant[,] 

and the fact that his prior record for distribution of cocaine has not been considered 

in the criminal history category.” Accordingly, the district court was not required 

to provide Crowe with advance notice before sentencing him outside the guideline 

range. We therefore affirm his sentence.

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AFFIRMED. 

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