Irizarry v. United States

(Slip Opinion) OCTOBER TERM, 2007 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

IRIZARRY v. UNITED STATES

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE ELEVENTH CIRCUIT

No. 06–7517. Argued April 15, 2008—Decided June 12, 2008

Petitioner pleaded guilty to making a threatening interstate communi-

cation to his ex-wife, in violation of federal law. Although the presen-

tence report recommended a Federal Sentencing Guidelines range of

41-to-51 months in prison, the court imposed the statutory maximum

sentence—60 months in prison and 3 years of supervised release—

rejecting petitioner’s objection that he was entitled to notice that the

court was contemplating an upward departure. The Eleventh Circuit

affirmed, reasoning that Federal Rule of Criminal Procedure 32(h),

which states that “[b]efore the court may depart from the applicable

sentencing range on a ground not identified . . . either in the presen-

tence report or in a party’s pre-hearing submission, the court must

give the parties reasonable notice that it is contemplating such a de-

parture,” did not apply because the sentence was a variance, not a

Guidelines departure.

Held: Rule 32(h) does not apply to a variance from a recommended

Guidelines range. At the time that Burns v. United States, 501 U. S.

129, was decided, prompting Rule 32(h)’s promulgation, the Guide-

lines were mandatory; the Sentencing Reform Act of 1984 prohibited

district courts from disregarding most of the Guidelines’ “mechanical

dictates,” id., at 133. Confronted with the constitutional problems

that might otherwise arise, the Burns Court held that the Rule 32

provision allowing parties to comment on the appropriate sentence—

now Rule 32(i)(1)(C)—would be “render[ed] meaningless” unless the

defendant were given notice of a contemplated departure. Id. at 135–

136. Any constitutionally protected expectation that a defendant will

receive a sentence within the presumptively applicable Guidelines

range did not, however, survive United States v. Booker, 543 U. S.

220, which invalidated the Guidelines’ mandatory features. Faced

2 IRIZARRY v. UNITED STATES

Syllabus

with advisory Guidelines, 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. Indeed, a sen-

tence outside the Guidelines carries no presumption of unreason-

ableness. Gall v. United States, 552 U. S. ___, ___. Thus, the due

process concerns motivating the Court to require notice in a manda-

tory Guidelines world no longer provide a basis for extending the

Burns rule either through an interpretation of Rule 32(h) itself or

through Rule 32(i)(C)(1). Nor does the rule apply to 18 U. S. C. §3553

variances by its terms. Although the Guidelines, as the “starting

point and the initial benchmark,” continue to play a role in the sen-

tencing determination, see Gall, 552 U. S., at ___, there is no longer a

limit comparable to the one in Burns on variances from Guidelines

ranges that a district court may find justified. This Court is confi-

dent that district judges and counsel have the ability—especially in

light of Rule 32’s other procedural protections—to make sure that all

relevant matters relating to a sentencing decision have been consid-

ered before a final determination is made. Pp. 5–8.

458 F. 3d 1208, affirmed.

STEVENS, J., delivered the opinion of the Court, in which ROBERTS,

C. J., and SCALIA, THOMAS, and ALITO, JJ., joined. THOMAS, J., filed a

concurring opinion. BREYER, J., filed a dissenting opinion, in which

KENNEDY, SOUTER, and GINSBURG, JJ., joined.

Cite as: 553 U. S. ____ (2008) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash-

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 06–7517

_________________

RICHARD IRIZARRY, PETITIONER v. UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

[June 12, 2008]

JUSTICE STEVENS delivered the opinion of the Court.

Rule 32(h) of the Federal Rules of Criminal Procedure,

promulgated in response to our decision in Burns v.

United States, 501 U. S. 129 (1991), states that “[b]efore

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.” The question presented

by this case is whether that Rule applies to every sentence

that is a variance from the recommended Federal Sen-

tencing Guidelines range even though not considered a

“departure” as that term was used when Rule 32(h) was

promulgated.

I

Petitioner, Richard Irizarry, pleaded guilty to one count

of making a threatening interstate communication, in

violation of 18 U. S. C. §875(c). Petitioner made the fol-

lowing admissions in the factual resume accompanying his

plea: (1) On November 5, 2003, he sent an e-mail threaten-

ing to kill his ex-wife and her new husband; (2) he had

sent “dozens” of similar e-mails in violation of a restrain-

2 IRIZARRY v. UNITED STATES

Opinion of the Court

ing order; (3) he intended the e-mails to “convey true

threats to kill or injure multiple persons”; and (4) at all

times he acted knowingly and willfully. App. 273–275.

The presentence report (PSR), in addition to describing

the threatening e-mails, reported that petitioner had

asked another inmate to kill his ex-wife’s new husband.

Brief for United States 6. The PSR advised against an

adjustment for acceptance of responsibility and recom-

mended a Guidelines sentencing range of 41-to-51 months

of imprisonment, based on enhancements for violating

court protective orders, making multiple threats, and

intending to carry out those threats. Brief for Petitioner 9.

As possible grounds for a departure, the probation officer

stated that petitioner’s criminal history category might

not adequately reflect his “ ‘past criminal conduct or the

likelihood that [petitioner] will commit other crimes.’ ”

Ibid.

The Government made no objection to the PSR, but

advised the court that it intended to call petitioner’s ex-

wife as a witness at the sentencing hearing. App. 293.

Petitioner objected to the PSR’s application of the en-

hancement based on his intention to carry out the threats

and its rejection of an adjustment for acceptance of re-

sponsibility. Id., at 295–296.

Four witnesses testified at the sentencing hearing. Id.,

at 299. Petitioner’s ex-wife described incidents of domestic

violence, the basis for the restraining order against peti-

tioner, and the threats petitioner made against her and

her family and friends. Id., at 307, 309, 314. She empha-

sized at some length her genuine concern that petitioner

fully intended to carry out his threats. Id., at 320. A

special agent of the Federal Bureau of Investigation was

called to describe documents recovered from petitioner’s

vehicle when he was arrested; those documents indicated

he intended to track down his ex-wife and their children.

Id., at 326–328. Petitioner’s cellmate next testified that

Cite as: 553 U. S. ____ (2008) 3

Opinion of the Court

petitioner “was obsessed with the idea of getting rid of” his

ex-wife’s husband. Id., at 336. Finally, petitioner testified

at some length, stating that he accepted responsibility for

the e-mails, but that he did not really intend to carry out

his threats. Id., at 361. Petitioner also denied speaking to

his cellmate about killing his ex-wife’s husband. Id., at

356–357.

After hearing from counsel, the trial judge delivered a

thoughtful oral decision, which included findings resolving

certain disputed issues of fact. She found that petitioner

had deliberately terrorized his ex-wife, that he intended to

carry out one or more of his threats, “that he still intends

to terrorize Ms. Smith by whatever means he can and that

he does not accept responsibility for what he has done.”

Id., at 372. After giving both petitioner and counsel

an opportunity to make further comment, the judge

concluded:

“I’ve considered all of the evidence presented today,

I’ve considered everything that’s in the presentence

report, and I’ve considered the statutory purpose of

sentencing and the sentencing guideline range. I find

the guideline range is not appropriate in this case. I

find Mr. Irizarry’s conduct most disturbing. I am sin-

cerely convinced that he will continue, as his ex-wife

testified, in this conduct regardless of what this court

does and regardless of what kind of supervision he’s

under. And based upon that, I find that the maxi-

mum time that he can be incapacitated is what is best

for society, and therefore the guideline range, I think,

is not high enough.

“The guideline range goes up to 51 months, which is

only nine months shorter than the statutory maxi-

mum. But I think in Mr. Irizarry’s case the statutory

maximum is what’s appropriate, and that’s what I’m

going to sentence him.” Id., at 374–375.

4 IRIZARRY v. UNITED STATES

Opinion of the Court

The court imposed a sentence of 60 months of imprison-

ment to be followed by a 3-year term of supervised release.

Id., at 375.

Defense counsel then raised the objection that presents

the issue before us today. He stated, “We didn’t have

notice of [the court’s] intent to upwardly depart. What the

law is on that now with—,” to which the Court responded,

“I think the law on that is out the window. . . . You had

notice that the guidelines were only advisory and the court

could sentence anywhere within the statutory range.” Id.,

at 377.

The Court of Appeals for the Eleventh Circuit affirmed

petitioner’s sentence, reasoning that Rule 32(h) did not

apply because “the above-guidelines sentence imposed by

the district court in this case was a variance, not a guide-

lines departure.” 458 F. 3d 1208, 1211 (2006) (per cu-

riam). The Court of Appeals declined to extend the rule to

variances. “After [United States v. Booker, 543 U. S. 220

(2005),] parties are inherently on notice that the sentenc-

ing guidelines range is advisory. . . . Given Booker, parties

cannot claim unfair surprise or inability to present in-

formed comment.” Id., at 1212.

Because the Courts of Appeals are divided with respect

to the applicability of Rule 32(h) to Guidelines variances,1

we granted certiorari. 552 U. S. ___ (2008). We now

affirm.

——————

1 Compare United States v. Vega-Santiago, 519 F. 3d 1 (CA1 2008) (en

banc); United States v. Vampire Nation, 451 F. 3d 189 (CA3 2006);

United States v. Mejia-Huerta, 480 F. 3d 713 (CA5 2007); United States

v. Long Soldier, 431 F. 3d 1120 (CA8 2005); and United States v.

Walker, 447 F. 3d 999, 1006 (CA7 2006), with United States v. Anati,

457 F. 3d 233 (CA2 2006); United States v. Davenport, 445 F. 3d 366

(CA4 2006); United States v. Cousins, 469 F. 3d 572 (CA6 2006); United

States v. Evans-Martinez, 448 F. 3d 1163 (CA9 2006); and United States

v. Atencio, 476 F. 3d 1099 (CA10 2007).

Cite as: 553 U. S. ____ (2008) 5

Opinion of the Court

II

At the time of our decision in Burns, the Guidelines

were mandatory; the Sentencing Reform Act of 1984, §211

et seq., 98 Stat. 1987, prohibited district courts from disre-

garding “the mechanical dictates of the Guidelines” except

in narrowly defined circumstances. 501 U. S., at 133.

Confronted with the constitutional problems that might

otherwise arise, we held that the provision of Rule 32 that

allowed parties an opportunity to comment on the appro-

priate sentence—now Rule 32(i)(1)(C)—would be “ren-

der[ed] meaningless” unless the defendant were given

notice of any contemplated departure. Id., at 135–136.

JUSTICE SOUTER disagreed with our conclusion with re-

spect to the text of Rule 32 and conducted a due process

analysis. Id., at 147 (dissenting opinion).

Any expectation subject to due process protection at the

time we decided Burns that a criminal defendant would

receive a sentence within the presumptively applicable

guideline range did not survive our decision in United

States v. Booker, 543 U. S. 220 (2005), which invalidated

the mandatory features of the Guidelines. Now faced with

advisory Guidelines, 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. Indeed, a sentence outside the Guidelines

carries no presumption of unreasonableness. Gall v.

United States, 552 U. S. ___, ___ (2007) (slip op., at 12); see

also Rita v. United States, 551 U. S. ___ (2007).

It is, therefore, no longer the case that “were we to read

Rule 32 to dispense with notice [of a contemplated non-

Guidelines sentence], we would then have to confront the

serious question whether [such] notice in this setting is

mandated by the Due Process Clause.” Burns, 501 U. S.,

at 138. The due process concerns that motivated the

Court to require notice in a world of mandatory Guidelines

no longer provide a basis for this Court to extend the rule

6 IRIZARRY v. UNITED STATES

Opinion of the Court

set forth in Burns either through an interpretation of Rule

32(h) itself or through Rule 32(i)(1)(C). And contrary to

what the dissent argues, post, at 1–2 (opinion of BREYER,

J.), the rule does not apply to §3553 variances by its terms.

“Departure” is a term of art under the Guidelines and

refers only to non-Guidelines sentences imposed under the

framework set out in the Guidelines.

The notice requirement set out in Burns applied to a

narrow category of cases. The only relevant departures

were those authorized by 18 U. S. C. §3553(b) (1988 ed.),

which required “an aggravating or mitigating circum-

stance of a kind, or to a degree, not adequately taken into

consideration by the Sentencing Commission in formulat-

ing the guidelines that should result in a sentence differ-

ent from that described.” That determination could only

be made based on “the sentencing guidelines, policy

statements, and official commentary of the Sentencing

Commission.” Ibid. And the notice requirement only

applied to the subcategory of those departures that were

based on “a ground not identified as a ground for . . . de-

parture either in the presentence report or in a pre-

hearing submission.” Burns, 501 U. S., at 138–139; see

also Fed. Rule Crim. Proc. 32(h). Although the Guidelines,

as the “starting point and the initial benchmark,” continue

to play a role in the sentencing determination, see Gall,

552 U. S., at ___ (slip op., at 11), there is no longer a limit

comparable to the one at issue in Burns on the variances

from Guidelines ranges that a District Court may find

justified under the sentencing factors set forth in 18

U. S. C. §3553(a) (2000 ed. and Supp. V).

Rule 32(i)(1)(C) requires the district court to allow the

parties to comment on “matters relating to an appropriate

sentence,” and given the scope of the issues that may be

considered at a sentencing hearing, a judge will normally

be well-advised to withhold her final judgment until after

the parties have had a full opportunity to present their

Cite as: 553 U. S. ____ (2008) 7

Opinion of the Court

evidence and their arguments. Sentencing is “a fluid and

dynamic process and the court itself may not know until

the end whether a variance will be adopted, let alone on

what grounds.” United States v. Vega-Santiago, 519 F. 3d

1, 4 (CA1 2008) (en banc). Adding a special notice re-

quirement whenever a judge is contemplating a variance

may create unnecessary delay; a judge who concludes

during the sentencing hearing that a variance is appropri-

ate may be forced to continue the hearing even where the

content of the Rule 32(h) notice would not affect the par-

ties’ presentation of argument and evidence. In the case

before us today, even if we assume that the judge had

contemplated a variance before the sentencing hearing

began, the record does not indicate that a statement an-

nouncing that possibility would have changed the parties’

presentations in any material way; nor do we think it

would in most cases. The Government admits as much in

arguing that the error here was harmless. Brief for

United States 37–38.

Sound 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. We recognize that there will be some

cases in which the factual basis for a particular sentence

will come as a surprise to a defendant or the Government.

The more appropriate response to such a problem is not to

extend the reach of Rule 32(h)’s notice requirement cate-

gorically, but rather for a district judge to consider grant-

ing a continuance when a party has a legitimate basis for

claiming that the surprise was prejudicial. As Judge

Boudin has noted,

“In the normal case a competent lawyer . . . will an-

ticipate most of what might occur at the sentencing

hearing—based on the trial, the pre-sentence report,

8 IRIZARRY v. UNITED STATES

Opinion of the Court

the exchanges of the parties concerning the report,

and the preparation of mitigation evidence. Garden

variety considerations of culpability, criminal history,

likelihood of re-offense, seriousness of the crime, na-

ture of the conduct and so forth should not generally

come as a surprise to trial lawyers who have prepared

for sentencing.” Vega-Santiago, 519 F. 3d, at 5.

The fact that Rule 32(h) remains in effect today does not

justify extending its protections to variances; the justifica-

tion for our decision in Burns no longer exists and such an

extension is apt to complicate rather than to simplify

sentencing procedures. We have confidence in the ability

of district judges and counsel—especially in light of Rule

32’s other procedural protections2—to make sure that all

relevant matters relating to a sentencing decision have

been considered before the final sentencing determination

is made.

The judgment of the Court of Appeals is affirmed.

It is so ordered.

——————

2 Rule 32 requires that a defendant be given a copy of his PSR at least

35 days before sentencing, Fed. Rule Crim. Proc. 32(e)(2). Further,

each party has 14 days to object to the PSR, Rule 32(f)(1), and at least 7

days before sentencing the probation officer must submit a final version

of the PSR to the parties, stating any unresolved objections, Rule 32(g).

Finally, at sentencing, the parties must be allowed to comment on

“matters relating to an appropriate sentence,” Rule 32(i)(1)(C), and the

defendant must be given an opportunity to speak and present mitiga-

tion testimony, Rule 32(i)(4)(A)(ii).

Cite as: 553 U. S. ____ (2008) 1

THOMAS, J., concurring

SUPREME COURT OF THE UNITED STATES

_________________

No. 06–7517

_________________

RICHARD IRIZARRY, PETITIONER v. UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

[June 12, 2008]

JUSTICE THOMAS, concurring.

Earlier this Term, I explained that because “there is no

principled way to apply the Booker remedy,” it is “best to

apply the statute as written, including 18 U. S. C.

§3553(b), which makes the [Federal Sentencing] Guide-

lines mandatory.” Kimbrough v. United States, 552 U. S.

___, ___ (2007) (slip op., at 3) (dissenting opinion) (refer-

encing United States v. Booker, 543 U. S. 220, 258–265

(2005)); see also Gall v. United States, 552 U. S. ___ (2007)

(slip op., at 1) (THOMAS, J., dissenting) (applying the

Guidelines as mandatory). Consistent with that view, I

would hold that the District Court committed statutory

error when it imposed a sentence at “variance” with the

Guidelines in a manner not authorized by the text of the

Guidelines, which permit sentences outside the Guide-

lines, or “departures,” only when certain aggravating or

mitigating circumstances are present. See United States

Sentencing Commission, Guidelines Manual §1B1.1 (Nov.

2007). But the issue whether such post-Booker “variances”

are permissible is not currently before us.

Rather, we are presented with the narrow question

whether Federal Rule of Criminal Procedure 32(h) re-

quires a judge to give notice before he imposes a sentence

outside the Guidelines on a ground not identified in the

presentence report or in a prehearing submission by the

Government. I agree with the Court that neither Rule

2 IRIZARRY v. UNITED STATES

THOMAS, J., concurring

32(h) nor Burns v. United States, 501 U. S. 129 (1991),

compels a judge to provide notice before imposing a sen-

tence at “variance” with the post-Booker advisory Guide-

lines, ante, at 8. Each addresses only “departures” under

the mandatory Guidelines and does not contemplate the

drastic changes to federal sentencing wrought by the

Booker remedy. For this reason, I join the Court’s opinion.

Cite as: 553 U. S. ____ (2008) 1

BREYER, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 06–7517

_________________

RICHARD IRIZARRY, PETITIONER v. UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

[June 12, 2008]

JUSTICE BREYER, with whom JUSTICE KENNEDY,

JUSTICE SOUTER, and JUSTICE GINSBURG join, dissenting.

Federal Rule of Criminal Procedure 32(h) says:

“Before the court may depart from the applicable sen-

tencing range on a ground not identified for depar-

ture either in the presentence report or in a party’s

prehearing submission, the court must give the par-

ties reasonable notice that it is contemplating such a

departure.”

The question before us is whether this Rule applies when

a sentencing judge decides, pursuant to 18 U. S. C.

§3553(a) (2000 ed. and Supp. V), to impose a sentence that

is a “variance” from the advisory Guidelines, but is not a

“departure” within the Guidelines. The Court says that

the Rule does not apply. I disagree.

The Court creates a legal distinction without much of a

difference. The Rule speaks specifically of “departure[s],”

but I see no reason why that term should not be read to

encompass what the Court calls §3553(a) “variances.” The

Guidelines define “departure” to mean “imposition of a

sentence outside the applicable guideline range or of a

sentence that is otherwise different from the guideline

sentence.” United States Sentencing Commission, Guide-

lines Manual (USSG), §1B1.1, comment., n. 1(E) (Nov.

2007). So-called variances fall comfortably within this

2 IRIZARRY v. UNITED STATES

BREYER, J., dissenting

definition. Variances are also consistent with the ordinary

meaning of the term “departure.” See, e.g., Webster’s

Third New International Dictionary 604 (1993) (defining

“departure” to mean a “deviation or divergence esp. from a

rule” (def. 5a)). And conceptually speaking, the substan-

tive difference between a “variance” and a “departure” is

nonexistent, as this Court’s opinions themselves make

clear. See, e.g., Gall v. United States, 552 U. S. ___, ___–

___ (2007) (slip op., at 7―8) (using the term “departure” to

describe any non-Guideline sentence); Rita v. United

States, 551 U. S. ___, ___–___ (2007) (slip op., at 10) (stat-

ing that courts “may depart (either pursuant to the Guide-

lines or, since Booker, by imposing a non-Guidelines

sentence)”).

Of course, when Rule 32(h) was written, its drafters had

only Guidelines-authorized departures in mind: Rule 32(h)

was written after the Guidelines took effect but before this

Court decided United States v. Booker, 543 U. S. 220

(2005). Yet the language of a statute or a rule, read in

light of its purpose, often applies to circumstances that its

authors did not then foresee. See, e.g., Oncale v. Sun-

downer Offshore Services, Inc., 523 U. S. 75, 79–80 (1998).

And here, the purpose behind Rule 32(h) requires that

the Rule be construed to apply to variances. That Rule

was added to “reflect” our decision in Burns v. United

States, 501 U. S. 129 (1991). See Advisory Committee’s

Notes on Fed. Rule Crim. Proc. 32, 18 U. S. C. App.,

p. 1141 (2000 ed., Supp. II). (2002 Amendments). In

Burns, the Court focused upon “the extraordinary case in

which the district court, on its own initiative and contrary

to the expectations both the defendant and the Govern-

ment, decides that the factual and legal predicates for a

departure are satisfied.” 501 U. S., at 135. The Court

held that “before a district court can depart upward on a

ground not identified as a ground for upward departure

either in the presentence report or in a prehearing sub-

Cite as: 553 U. S. ____ (2008) 3

BREYER, J., dissenting

mission by the Government . . . the district court [must]

give the parties reasonable notice that it is contemplating

such a ruling.” Id., at 138.

Our holding in Burns was motivated, in part, by a desire

to avoid due process concerns. See 501 U. S., at 138

(“[W]ere we to read Rule 32 to dispense with notice, we

would then have to confront the serious question whether

notice in this setting is mandated by the Due Process

Clause”). That is perhaps why the majority today sug-

gests that “[a]ny expectation subject to due process protec-

tion at the time we decided Burns” failed to survive

Booker. Ante, at 5. But the due process concern was not

the only reason for our holding in Burns, nor was it even

the primary one. Rather, the Court principally based its

decision upon Rule 32’s requirement that parties be given

“ ‘an opportunity to comment upon . . . matters relating to

the appropriate sentence.’ ” 501 U. S., at 135 (citing then-

Rule 32(a)(1)). “Obviously,” the Court said, whether a

sua sponte departure was warranted was a “matter relat-

ing to the appropriate sentence.” Ibid. (internal quotation

marks omitted). To deprive the parties of notice of such a

departure would thus “rende[r] meaningless” their right to

comment on “matters relating to the appropriate sen-

tence.” Id., at 136 (internal quotation marks omitted).

Notice, the Court added, was “essential to assuring proce-

dural fairness.” Id., at 138.

The Court’s decision in Burns also relied on what the

Court described as Rule 32’s overall purpose of

“provid[ing] for focused, adversarial development of the

factual and legal issues” related to sentencing. Id., at 134.

This could be gleaned, inter alia, from the requirement

that parties be given an opportunity to file responses or

objections to the presentence report and from the re-

quirement that parties be given an opportunity to speak at

the sentencing proceeding. Ibid. Construing Rule 32 not

to require notice of sua sponte departures, the Court rea-

4 IRIZARRY v. UNITED STATES

BREYER, J., dissenting

soned, would be “inconsistent with Rule 32’s purpose of

promoting focused, adversarial resolution” of sentencing

issues. Id., at 137.

The primary grounds for the Court’s decision in Burns

apply with equal force to the variances we consider here.

Today, Rule 32(i)(1)(C) provides a virtually identical re-

quirement that the district court “allow the parties’ attor-

neys to comment on the probation officer’s determinations

and other matters relating to an appropriate sentence.”

(Emphasis added.) To deprive the parties of notice of

previously unidentified grounds for a variance would

today “rende[r] meaningless” the parties’ right to comment

on “matters relating to [an] appropriate sentence.” Burns,

501 U. S., at 136 (internal quotation marks omitted). To

deprive the parties of notice would today subvert Rule 32’s

purpose of “promoting focused, adversarial resolution” of

sentencing issues. In a word, it is not fair. Id., at 137.

Seeking to overcome the fact that text, purpose, and

precedent are not on its side, the majority makes two

practical arguments in its defense. First, it says that

notice is unnecessary because “there is no longer a limit

comparable to the one at issue in Burns” as to the number

of reasons why a district court might sua sponte impose a

sentence outside the applicable range. Ante, at 6. Is that

so? Courts, while now free to impose sentences that vary

from a Guideline-specified range, have always been free to

depart from such a range. See USSG ch. 1, pt. A, §4(b)

(Nov. 1987), reprinted in §1A1.1 comment., editorial note

(Nov. 2007) (suggesting broad departure authority). In-

deed, even Burns recognized that “the Guidelines place

essentially no limit on the number of potential factors that

may warrant a departure.” 501 U. S., 136–137 (citing

USSG ch. 1, pt. A, §4(b) (1990)). Regardless, if Booker

expanded the number of grounds on which a district court

may impose a non-Guideline sentence, that would seem to

be an additional argument in favor of, not against, giving

Cite as: 553 U. S. ____ (2008) 5

BREYER, J., dissenting

the parties notice of the district court’s intention to impose

a non-Guideline sentence for some previously unidentified

reason. Notice, after all, would promote “focused, adver-

sarial” litigation at sentencing. Burns, supra, at 134, 137.

Second, the majority fears that a notice requirement

would unnecessarily “delay” and “complicate” sentencing.

Ante, at 7, 8. But this concern seems exaggerated. Rule

32(h) applies only where the court seeks to depart on a

ground not previously identified by the presentence report

or the parties’ presentencing submissions. And the Solici-

tor General, after consulting with federal prosecutors, tells

us that “in the vast majority of cases in which a district

court imposes a sentence outside the Guidelines range, the

grounds for the variance have previously been identified

by the [presentence report] or the parties.” Brief for

United States 32.

In the remaining cases, notice does not necessarily mean

delay. The parties may well be prepared to address the

point and a meaningful continuance of sentencing would

likely be in order only where a party would adduce addi-

tional evidence or brief an unconsidered legal issue. Fur-

ther, to the extent that district judges find a notice re-

quirement to complicate sentencing, those judges could

make use of Rule 32(d)(2)(F), which enables them to re-

quire that presentence reports address the sentence that

would be appropriate in light of the §3553(a) factors (in-

cluding, presumably, whether there exist grounds for

imposing a non-Guidelines sentence). If a presentence

report includes a section on whether a variance would be

appropriate under §3553(a), that would likely eliminate

the possibility that the district court would wind up impos-

ing a non-Guidelines sentence for some reason not previ-

ously identified.

Finally, if notice still produced some burdens and delay,

fairness justifies notice regardless. Indeed, the Govern-

ment and the defendant here—the parties most directly

6 IRIZARRY v. UNITED STATES

BREYER, J., dissenting

affected by sentencing—both urge the Court to find a

notice requirement. Clearly they recognize, as did the

Court in Burns, that notice is “essential to assuring proce-

dural fairness” at sentencing. 501 U. S., at 138.

I believe that Rule 32(h) provides this procedural safe-

guard. And I would vacate and remand to the Court of

Appeals so that it could determine whether the petitioner

received the required notice and, if not, act accordingly.

I respectfully dissent.