Petitioners Brief — Irizarry v. United States

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4 FILED

Oo FEB 21 2008

S32 No. 06-7517 SUPREME COUR EET

THE

Supreme Court of the United States

RICHARD IRIZARRY,

UNITED STATES OF AMERICA,

Petitioner,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Eleventh Circuit

BRIEF FOR PETITIONER

ARTHUR J. MADDEN III

(Counsel of Record)

MADDEN & SOTO

465 Dauphin Street

Mobile, AL 36602

(251) 432-0380

JONATHAN D. HACKER WALTER DELLINGER

HARVARD LAW SCHOOL MARK S. DAVIES

SUPREME COURT AND RYAN W. ScoTtT*

APPELLATE ADVOCACY SUSAN M. Moss

CLINIC O’MELVENY & MYERS LLP

1575 Massachusetts Ave. 1625 Eye Street, N.W.

Cambridge, MA 02138 Washington, DC 20006

*Admitted only in Illinois

‘QUESTION PRESENTED

Whether a district court must provide a criminal

defendant notice of the contemplated grounds for a

sentence above the range recommended by the Sen-

tencing Guidelines.

4 TABLE OF CONTENTS

| | Page

| QUESTION PRESENTED .........cscccosssssssssssseseeenssee

TABLE OF AUTHORITIES..............::sssscesssssesseesseen iv

i BRIEF FOR PETITIONER ...........:scsccsessecessesseseseeeees 1

| | ETD 1

i TREE een a ae 1

) CONSTITUTIONAL PROVISION, STATUTE,

AND RULES INVOLVED ............sssssssesosssese0s 1

4 STATEMENT OF THE CASE .............sssssssssseseeeen 2

: A. Statutory Background ..............cccc-.cccsvssessscoses 2

{ B. Factual Background ............ccc.sssssssesssssesssssees 3

i C. Procedural History...............csssscsssssssssee-seeeesee 6

t D. Sentencing Hearing..........sscsssssssssssssssseseee 10

i E. Proceedings on Appeal................-..0ssssseseseeees 11

i SUMMARY OF ARGUMENT. .........:ssss::ssesssssseeseeses 13

i ES ES 16

i I. THE DISTRICT COURT ERRED IN

i FAILING TO PROVIDE REASON-

ABLE NOTICE BEFORE IMPOSING

AN ABOVE-GUIDELINES

SENTENCE UNDER BOOKER. ..........:-++++++: 16

et Ta, Oe ee ee ee ee Le ee i Oe eee ee Tes Se mh ee ee ee

ili

TABLE OF CONTENTS

(continued)

A. Rule 32 Compels A Sentencing

_ Court To Provide Reasonable Notice

Of The Contemplated Grounds For

An Above-Guidelines Sentence Based

B. The Court Of Appeals Erred In —

For Non-Guidelines Sentences

Il. THE DISTRICT COURT’S FAILURE

TO PROVIDE REASONABLE NOTICE

BEFORE IMPOSING AN ABOVE-

GUIDELINES SENTENCE

REQUIRES A NEW SENTENCING

a secennnrene 29

PIT stpiisiccasesccsssncsccescossevessovcccccccccossososeses 35

STATUTORY APPENDILA.............cccccssseessesneeenceees lsa

TABLE OF AUTHORITIES

Page(s)

CASES

Burns v. United States,

Pe Dn, cccoreccsonccnscsocveseess passim

Carella v. err ia,

491 US. ss adem 30

Oo v. California,

ETD. cncscccoccceccccccsovcccctessesosseoes 12, 31

Gall v. United States,

128 S. Ct. GBC (2007) .............c.cccccscsccccsssscosecoes 3, 21

Gardner v. Florida,

430 U.S. S49 (1977) ...........ccccccccccsssccccccssesseseesoes 24

Glover v. United States,

ee ID on ccccoccvesccocscccccssescensocesseese 34

Kimbrough v. United States,

128 $°Ct. Tai ns sccnnsanconsscenboosencccerees 27

Mullane v. Cent. Hanover Bank & Trust

Co., 339 U.S. 306 (1950).................0220002- 20, 23, 24

Neder v. United States,

TL... ccccocosveseosscssossoosnsssootenns 30

Rita v. United States,

127 S. Ct. 2456 (2007)...................... 21, 23, 24, 27

State of Illinois Dept. of Pub. Aid v.

Schweiker,

707 F.2d 273 (7th Cir. 1983) ..............scceceseeseeeees 29

Townsend v. Burke,

BEE IPEIDD cccccccccecesoscoccccoccccccoseeccesee 24, 25

United States v. Anati,

457 F.3d 233 (2d Cir. 2006)...............cscseseseseseenes 20

United States v. Atencio,

476 F.3d 1099 (10th Cir. 2007).............:.scseseeees 26

TABLE OF AUTHORITIES

(continued)

Page(s)

United States v. Booker,

543 U.S. 220 (2008) ..............cccccsessecserenseeees passim

United States v. Burns,

946 F.2d 1567 (D.C. Cir. 1991) ..........c.cecseseseee0es 30

United States v. Calzada-Maravillas,

443 F.3d 1301 (10th Cir. 2006)..............000+- 31, 33

United States v. Carter,

203 F.3d 187 (2d Cir. 2000)..............:c0cceeeeeeeeeeees 33

United States v. Cousins,

469 F.3d 572 (6th Cir. 2006) ...................ccseeeeeees 26

United States v. Davenport,

445 F.3d 366 (4th ir. 2006) LS RSE ELA ine: 27

United States v. Evans-Martinez,

448 F.3d 1163 (9th Cir. RR EP 22

United States v. Himler,

355 F.3d 735 (3d Cir. 2004).................ceeeceeeeeeeees 31

United States v. Lopreato,

83 F.3d 571 (2d Cir. 1996) a A RD ote 97 31

United States v. Mi :

105 F.3d 29 (Ast Cir. 1997).............cccceccceseeeeeeeees 33

United States v. Mejia-Huerta,

480 F.3d 713 (5th Cir. 2007) ................cccccceeeeeees 28

United States v. Nuno-Para,

877 F.2d 1409 (9th Cir. 1989) ..................ceeeeeeees 33

United States v. Olano,

EE Ny WI IID cen scccoccccccosccccccssccccccscesscosecees 31

United States v. Paslay,

971 F.2d 667 (1ith ¢ Cir. TD cicnisscoupenthaiuanendedenl 31

* ar ay ae ee . sie S a ¥ i ata lene . i pS Seale ain oor

OS ES ae ee ee ee ge a Ae ae. ee PO, ee Oe ee PF eee Se ee Oe Pe ey ee ee

TABLE OF AUTHORITIES

(continued)

18 U.S.C. § 875(c)

18 U.S.C. § 3551(bX1) (Supp. IV 2004)

18 U.S.C. § 3551-3742

18 U.S.C. § 3553(a)

18 U.S.C. § 3553(aX1)

18 U.S.C. § 3553(aX2)

18 U.S.C. § 3553(aX2XC)

18 U.S.C. § 3553(bX1) (Supp. [V 2004))

18 U.S.C. § 4244

28 U.S.C. § 991-998

Fed. R. Crim. P. 32

Fed. R. Crim. P. 32(c)

Fed. R. Crim. P. 32(d 1D ii)

Fed. R. Crim. P. 32(d(1E)

Fed. R. Crim. P. 32(dX2XF)

Fed. R. Crim. P. 32(eX2)

Fed. R. Crim. P. 32(iX1XC)

Fed. R. Crim. P. 52(a)

Vii

TABLE OF AUTHORITIES

(continued)

SENTENCING PROVISIONS

U.S.S.G. § 2A6.1(bX1)

U.S.S.G. § 2A6.1(bX2)

U.S.S.G. § 2A6.1(bX3)

USS.G. § 3E1.1 ....................... i iach ia eile 9

a seepnsusnseiaeientiials 22

eel 22

U.S.S.G. ch 1, pt. A4(b)

U.S.S.G. ch. 5, pt. K

Webster’s Third New International

icti of the English Language

BRIEF FOR PETITIONER

OPINIONS BELOW

The opinion of the United States Court of Ap-

peals for the Eleventh Circuit is reported at 458

F.3d 1208 and is reprinted in the Joint Appendix

(“J.A.”)! at 392-400. The district court’s orders

are unreported but are reprinted at J.A. 260-71,

277-84, 288-90, and 381-91.

JURISDICTION

The district court had jurisdiction pursuant to

18 U.S.C. § 3231. The court of appeals had juris-

diction pursuant to 28 U.S.C. § 1291 and 18

U.S.C. § 3742(a).

The judgment of the court of appeals was en-

tered on August 1, 2006. The petition was filed on

October 26, 2006, and granted on January 4,

2008. This Court has jurisdiction under 28 U.S.C.

§ 1254(1).

CONSTITUTIONAL PROVISION,

STATUTE, AND RULES INVOLVED

The constitutional provision, statutory provi-

sion, and rules of criminal procedure involved in

the case are set forth in the appendix to this brief

at lsa-10sa. See S. Ct. Rule 24.1(f).

1 The Joint Appendix comprises three volumes, the third

of which contains material filed under seal.

OE eT ET Se ee ee ee ee Ee See Te Ree ee en ea one

STATEMENT OF THE CASE

A. Statutory Background

1. The Sentencing Reform Act of 1984 (SRA),

18 U.S.C. § 3551-3742 and 28 U.S.C. § 991-998,

“revolutionized” criminal sentencing in federal

courts by establishing the United States Sentenc-

ing Commission and charging it with the devel-

opment of a system of Sentencing Guidelines

based on factors set forth in 18 U.S.C. § 3553(a).

Burns v. United States, 501 U.S. 129, 132-33

(1991). Under the SRA, district courts were re-

quired to impose a sentence within the applicable

Guidelines range unless they found “that there

exist{ed] an aggravating or mitigating circum-

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

taken into consideration” by the Guidelines. 18

U.S.C. § 3551(bX1) (Supp. IV 2004). The Sentenc-

ing Commission specified a number of permissible

grounds for departure from the Guidelines range,

see U.S. Sentencing Guidelines Manual (U.S.S.G.)

ch. 5, pt. K, but it also explained that the list was

“not exhaustive” and that district courts were free

to depart “on grounds not mentioned in the guide-

lines” in an appropriate case. U.S.S.G. ch. 1, pt.

A4b) (1991).

The SRA also amended Federal Rule of Crimi-

nal Procedure 32 to “provide[] for focused, adver-

sarial development of the factual and legal issues

relevant to determining the appropriate Guide-

lines sentence.” Burns, 501 U.S. at 134. Among

other provisions, Rule 32 directs the probation of-

ficer to prepare a presentence report addressing

a. ae ae OS eee” ye ee ee) ee Oe

matters relevant to the defendant’s sentence.

Fed. R. Crim. P. 32(c).

In Burns, this Court held that “before a dis-

trict court can depart upward on a ground not

identified as a ground for upward departure ei-

ther in the presentence report or in a prehearing

submission by the Government, Rule 32 requires

that the district court give the parties reasonable

notice that it is contemplating such a ruling.” 501

US. at 138.

2. In United States v. Booker, 543 U.S. 220

(2005), the Court held that the SRA violated the

Sixth Amendment right to a jury trial. Id. at 244.

As a remedy, the Court severed the provision of

the Act that made the Guidelines mandatory. Id.

at 245 (severing two provisions, including 18

U.S.C. § 3553(bX1) (Supp. IV 2004)). As a result

of Booker, the Guidelines are “effectively advi- —

sory,” and a district court is now free to impose

any sentence within the range permitted by stat-

ute, based on the factors set forth in Sec-

tion 3553(a). Booker, 543 U.S. at 245; see also

Gall v. United States, 128 S. Ct. 586, 594 (2007).

B. Factual Background |

1. Petitioner Richard Irizarry suffers from a

borderline personality disorder with paranoid and

antisocial features. J.A. 128, 267.2 His symptoms a

include emotional volatility, recurrent ideations of

2 Mr. Irizarry has consistently denied that he is affected

by any mental illness or defect. On appeal he accepts, for

the sake of argument, the contrary findings of the district

court. See J.A. 267. :

suicide, and frantic efforts to avoid real or imag-

ined abandonment. Id. at 128-30. Most promi-

nently, he suffers from “transient stress-related

paranoid ideations, especially suspiciousness,”

that are global and pervasive. Jd. at 130. Be-

cause of his mental illness, without any “justifi-

able basis” he harbors suspicions of exploitation

and infidelity, doubts the loyalty of friends and

family members, and persistently bears grudges.

Id. at 131.

Despite the seriousness of his condition, Mr.

Irizarry has only “a modest history of mental

health treatment.” Id. at 133. He has undergone

two “brief psychiatric hospitalizations,” once in

2000 and again in September 2002, but both

times he was treated only with antidepressant

medications, which did not target his paranoia.

Id. at 133-34. Later, while incarcerated, he ini-

tially took antidepressants but discontinued the

treatment on his own. Id. at 134.

2. Mr. Irizarry and his ex-wife, Leah Smith,

were married in 1995 and have two children. In

2000, she left him, took the children, and moved

from California to South Carolina. In 2001, she

obtained a divorce and a restraining order against

him in a South Carolina court. J.A. 394.

After she left, Mr. Irizarry developed a number

of paranoid fantasies about his ex-wife. He be-

came convinced that she had hacked the computer

systems of the Ku Klux Klan, that she was send-

ing him threatening letters, and that she was

physically abusing the children by whipping

them, forcing them to sleep outside, and ripping

Poe oe eee oe ee eee ae eS ee eer eee ee

out their toenails with pliers. J.A. 42, 45, 51, 53,

66-67, 70-71, 157. In 2001, he drove to South

Carolina and was jailed for 30 days for violating

the restraining order. Id. at 394. In his car, po-

lice found a hammer, rope, tarps, and duct tape.

Id. The actions of the South Carolina police, he

maintains, are part of “a conspiracy to destroy

evidence that might help fhim].” Jd. at 79-80,

102. His ex-wife remarried and moved to Mobile,

Alabama, with the children. Id. at 394.

Between August and December of 2003, while

living in California, Mr. Irizarry sent a series of e-

mail messages to his ex-wife in Alabama. In the

messages, he explicitly threatened to kill his ex-

wife, her husband, her mother, and several of her

acquaintances. J.A. 273-75, 394. The e-mail mes-

sages also stated that he was in contact with two

governors, that a district attorney had assured

him he could bring a federal case against his ex-

wife for abusing the children, and that he was |

traveling to various destinations in the United

States and Canada simultaneously, in some cases

with a group of “ex-guerilla warfare soldiers.” Id.

at 177; see J.A. 420-48.

Mr. Irizarry was arrested in December 2003,

and in an interview with the FBI he repeated his

threats. J.A. 394. In his vehicle, police found

computer printouts, dated more than a year ear-

lier, suggesting that he had planned to travel to

Mobile 'to find his ex-wife and children. J.A. 394;

see id. at 330-31. He maintained that he intended

to commit a federal crime and to be apprehended,

for the purpose of launching an FBI investigation

into “all the things” his ex-wife had done. J.A. 74.

Specifically, his goal in getting caught was to “ex-

pose [his ex-wife’s] involvement with the Klan ...

and her abuse of the children.” Jd. at 108-09. He

says that the plan “backfired.” Id. at 74. He has

alleged that the FBI is withholding information

“as part of a conspiracy to let [his] ex-wife win.”

Id. at 105; see id. at 177.

C. Procedural History

1. Mr. Irizarry was indicted by a grand jury in

the United States District Court for the Southern

District of Alabama on fifteen counts of transmit-

ting electronic communications containing threats

to kill or injure, in violation of 18 U.S.C. § 875(c).

J.A. 19-21. A federal public defender was ap-

pointed to represent him. He entered a plea of

not guilty and gave notice of his intent to raise an

insanity defense. Id. at 11. The district court or-

dered Mr. Irizarry to undergo an examination to

determine, inter alia, whether he was suffering

from a mental disease or defect that rendered him

unable to understand the nature and conse-

quences of the proceedings against him and to as-

sist in his defense. Id. at 16.

The district court conducted a competency

hearing and heard testimony from expert wit-

nesses for the defense and prosecution. J.A. 25-

258. The government’s forensic psychologist testi-

fied that Mr. Irizarry suffers from an anxiety dis-

order and a borderline personality disorder with

paranoid and antisocial features. Jd. at 126-28.

He testified that Mr. Irizarry’s condition is char-

acterized by “instability in pretty much every do-

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“ ae i i ai a el Ale A ek kt

main,” id. at 128, and involves global and perva-

sive paranoid ideations, id. at 130. The district

court agreed with the government’s expert that

Mr. Irizarry was “suffering from a mental condi-

tion,” but that he was competent to stand trial.

J.A. 267.

Because the scope of the hearing was limited

to competency, however, the court did not con-

sider Mr. Irizarry’ future dangerousness or

whether his condition was treatable.’ In fact, at

one point in the hearing, the court specifically cut

off testimony about the risk that Mr. Irizarry

would pose a danger in the future. When the ex-

pert witness for the defense began to discuss “con-

cerns about the potential dangerousness,” noting

that “(t]he best statistical predictor of dangerous-

ness is a history of having been dangerous,” J.A.

188, the district court interrupted, asking “how is

this relevant to what I have to determine right

now?” Id. Defense counsel stated that she

wanted to present testimony about “third-party

risk.” Id. The district court replied, “I know. But

how does that relate to his competency to stand

trial?” Jd. at 189. In light of the court’s ques-

3 Mr. Irizarry indicated a willingness to undergo treat-

ment. J.A. 257-58. The government’s psychologist also tes-

tified that there are medications that “could mitigate” even

serious delusional symptoms, noting the availability of an-

tipsychotic drugs that “would work .. . particularly well” on

“delusions or hallucinations, these thinking and perceptual

disturbances.” Id. at 146. Both experts suggested that the

antidepressant medications he had taken in the past had

little effect. Id. at 133-34, 193.

i > oii Tes ae ee ya Aa) Bo Re lg ee, & PO a ee ee eee

tions, counsel said, “Ill change course, Your

Honor.” Id.

2. Mr. Irizarry pleaded guilty to one count of

the indictment, and the government dismissed the

remaining counts. J.A. 272-76, 393. In a factual

resume, he admitted that he sent a threatening e-

mail message through interstate commerce to his

ex-wife. He further admitted that the message

was “intended . . . to be a true threat to kill or in-

jure” his ex-wife and her new husband, and that

his “intention was that (they) take the threat se-

riously.” Id. at 274-75. He also admitted that,

since the divorce, he had sent “dozens of other

similar e-mails” and that he did so in violation of

the South Carolina restraining order. Jd. at 275.

The court accepted the guilty plea and set a date

for sentencing. Id. at 277-78.

One week later, defense counsel made a mo-

tion for Mr. Irizarry to be hospitalized pursuant to

18 U.S.C. § 4244 so that he could receive mental

health treatment prior to sentencing. J.A. 285-87.

In ruling, the court noted that, although the psy-

chologists testifying at the competency hearing

“disagreed on the diagnosis, all opined that Mr.

Irizarry is suffering from a mental condition,” and

so granted the relief “[bJased on the motion and

the court’s knowledge of Mr. Irizarry from the

proceedings in this case.” Id. at 288-90. Shortly

thereafter, his attorney moved to withdraw as

counsel, citing information she received from

third parties and professional ethical considera-

tions. J.A. 291-92. The court granted the motion

and appointed Arthur Madden as new counsel.

On January 19, 2005, one week after this

Court’s decision in United States v. Booker, 543

U.S. 220 (2005), the probation office filed its pre-

sentence investigation report (PSR). The PSR

calculated a Guidelines sentencing range of 41 to

51 months, based on a category I criminal history

and an adjusted offense level of 22. J.A. 415. The

offense level reflected enhancements for “conduct

evidencing an intent to carry out [the] threat,” see

U.S.S.G. §2A6.1(bX1), for making multiple

threats, see U.S.S.G. § 2A6.1(bX2), and for violat-

ing a court protection order, see U.S.S.G.

§ 2A6.1(bX3). J.A. 407. The PSR recommended

that there be no downward adjustment for accep-

tance of responsibility under U.S.S.G. § 3E1.1.

J.A. 406.

Under the heading “Factors That May War-

rant Departure,” the PSR stated that “[pjursuant

to Guidelines 4A1.3 (Adequacy of Criminal His-

tory Category), the Court may consider whether

or not the defendant’s criminal history category

adequately reflects the defendant’s past criminal

conduct or the likelihood that the defendant will

commit other crimes.” J.A. 417. “If not,” the PSR

continued, “the Court may consider imposing a

sentence departing from the otherwise applicable

Guidelines range.” Id.

Mr. Irizarry filed written objections to the PSR

challenging, among other conclusions, its descrip-

tion of his criminal history and its application of

enhancement for conduct evidencing an intent to

carry out the threat. J.A. 295-96, 418. The gov-

ernment did not object to the PSR and did not re-

4 a

quest an above-Guidelines sentence. Jd. at 293-

94, 418.

D. Sentencing Hearing

On March 17, 2005, the district court con-

ducted a sentencing hearing. It heard victim im-

pact testimony from Ms. Smith, Petitioner’s ex-

wife, who said that she was “certain” that he

would “not stop terrorizing” her family. J.A. 320.

The court also heard from Mr. Irizarry’s former

cellmate, who testified that even after the arrest,

Mr. Irizarry threatened to kidnap his children

and kill his ex-wife’s mother. Jd. at 335-37. The

cellmate testified that Petitioner experienced

massive mood swings while in jail, during which

he would fly into “a rage” and “beat his head

against the wall.” Jd. at 335. Mr. Irizarry testi-

fied that he knew his conduct was wrong and that

he accepted responsibility for his actions. J.A.

348. He testified that, contrary to statements in

the e-mail messages, he had never purchased any

bombs, guns, or knives, or other “stuff like that.”

Td. at 351-52.

The court overruled Mr. Irrizary’s objections

and accepted the PSR’s calculation of the Guide-

lines range. J.A. 372. When it announced the

sentence, however, it also indicated for the first

time that it intended to impose a sentence above

the Guidelines range, finding that “the Guidelines

range is not appropriate in this case.” J.A. 374.

The court based its upward variance from the

Guidelines on Mr. Irizarrys future dangerous-

ness:

ee, TPES, OOPS SS eT Se ee Oe eT Ne ee ee ee -

I find Mr. Irizarry’s conduct most disturb-

ing. I am sincerely 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 is under. And based upon that, I find

that the maximum time that he can be in-

capacitated 3 what is best for society, and

therefore the guideline range, I think, is

not high enough.

Id. at 374-75. The court announced a sentence of

60 months of imprisonment, the statutory maxi-

mum, to be followed by three years of supervised

release. Id. at 375.

Defense counsel immediately objected that

“the sentence constitutes an upward departure

from what the court found to be the applicable

Guidelines range” and “[w]Je didn’t have notice of

its intent to upwardly depart.” J.A. 377. The

court flatly stated that no such notice is required:

“I think the law on that is out the window.” Id.

Defense counsel repeated his objection “to [the]

failure to give notice of the court’s intention to

upwardly depart.” Id.

E. Proceedings on Appeal

Mr. Irizarry appealed, arguing that the district

court erred in failing to provide notice of the con-

templated grounds for its sua sponte departure

from the Guidelines range as required by Burns v.

United States, 501 U.S. 129 (1991) and codified in

Federal Rule of Criminal Procedure 32(h). The

Government conceded that the district court had

erred in failing to provide notice, but argued that

EY Oe SET eee Ae es OEE PS ON LN ay Othe an ee eee a

the error was harmless beyond a reasonable doubt

under Chapman uv. California, 386 U.S. 18, 22-24

(1967). Gov’t C.A. Br. 11, 17-18.

The court of appeals affirmed, finding no error,

and thus not reaching the question of harmless-

ness. J.A. 392-400. It agreed that the district

court had issued a sentence longer than the advi-

sory Guidelines range “because of the likelihood

Irizarry would continue to threaten his wife.” Id.

at 392; see id. at 396. It also recognized that, un-

der this Court’s holding in Burns, “before a dis-

trict court can depart upward on a ground not

identified as a ground for upward departure ei-

ther in the presentence report or in a prehearing

submission by the Government, Rule 32 requires

that the district court give the parties reasonable

notice that it is contemplating such a ruling.” Jd.

at 397 (quoting Burns, 501 U.S. at 138); see Fed.

R. Crim. P. 32(h).

Nonetheless, the court held that no error oc-

curred because “the above-guidelines sentence .. .

in this case was a variance, not a guidelines de-

parture.” J.A. 398. Rather than departing on a

ground specified in Chapters 4 and 5 of the Sen-

tencing Guidelines, the district court had consid-

ered the sentencing factors set forth in 18 U.S.C.

§ 3553(a), including the need “to protect the public

from further crimes of the defendant,” 18 U.S.C.

§ 3553( (2\C), and exercised its discretion under |

Booker to impose an above-Guidelines sentence. .

Id. at 398-99 & n.2. No notice is required under .

those circumstances, the court explained, because

“[alfter Booker, parties are inherently on notice

eee ee ee eS a.

that the sentencing guidelines range is advisory”

and that any of the Section 3553(a) factors may

justify a non-Guidelines sentence. Jd. at 399-400.

The court therefore concluded that “the district

court was not required to give Irizarry advance

notice” of its contemplated grounds for varying

from the Guidelines. Jd. at 400. It acknowledged

that its holding conflicted with the decisions of

several other courts of appeals. Jd. at 399 n.4.

SUMMARY OF ARGUMENT

1. In Burns, this Court held that Rule 32 im-

poses a requirement that the district court pro-

vide reasonable notice before departing from the

Guidelines range. The notice requirement was

driven by three considerations. The text of Rule

32 guarantees the parties an opportunity to com-

ment on the factors relevant to sentencing, an op-

portunity that necessarily requires notice of the

grounds for departing. Notice was also required

to ensure focused adversarial testing of the

grounds for the sentence. Moreover, a notice re-

quirement permitted the Court to avoid the “seri-

ous” constitutional question of whether due proc-

ess requires notice under the circumstances.

Each of those reasons applies with equal or

greater force to above-Guidelines sentences under

Booker and Section 3553(a). Just as a defendant

needs notice to meaningfully “comment” on a sen-

tence that departs under the Guidelines, parties

need notice to comment on a non-Guidelines sen-

tence. Furthermore, Rule 32(h) was enacted in

2002 as a codification of the holding in Burns and

requires reasonable notice of the contemplated

a I a Pe ee ee Oe ee ee SS a ee ee ee ee or A

grounds for “departures” from the Guidelines.

The plain meaning of the term “departures” easily

includes a post-Booker “variance“ sentence that

departs from the standards set out in the now “ef-

fectively advisory” Guidelines.

Moreover, a rule that required reasonable no-

tice only for Guidelines departures—but not for

above-Guidelines sentences under Section

3553(a)—would contravene the purpose of Rule 32

to provide focused adversarial testing of the

grounds for the sentence. The Court in Burns

was concerned that a lack of notice would lead to

wasteful, scattershot argument by parties trying

to anticipate every conceivable ground for depar-

ture, or to resignation in the face of that daunting

task. Those concerns apply fully to post-Booker

sentences under Section 3553(a). Indeed, because

Booker expanded the discretion of district courts

and the universe of permissible reasons for a non-

Guidelines sentence, the need for reasonable no-

tice is even more acute after Booker than before.

A notice requirement that turns on an artificial

distinction between Guidelines departures and

non-Guidelines sentences under Booker would

also pose problems of administrability.

Importantly, the same serious constitutional

question that the Court avoided in Burns is pre-

sent in this setting. Without reasonable notice of

the grounds for a non-Guidelines sentence, there

is a serious concern that the defendant’s right to

notice and fair opportunity to comment on the

grounds for his incarceration would be violated.

This serious constitutional concern supplies an

oe ee ee

PE PS ee ee 8 Ee TI ge nt ee, ee ere ee eo Pew

additional reason to construe Rule 32 to impose a

requirement of reasonable notice for all non-

Guidelines sentences.

2. In this case, the failure to provide notice af-

fected Mr. Irizarry’s substantial rights and neces-

sitates a new sentencing hearing. Although the

Government has suggested that the error in this

case was harmless (Gov't Br. in Opp. 13), this

Court need not address that question in the first

instance and should instead follow its usual prac-

tice of remanding to the court of appeals for harm-

less error review. Moreover, a remand to the

court of appeals would permit this Court to avoid

resolving the due process question not reached in

Burns. On this record, the Government cannot

possibly carry its burden of excusing a constitu-

tional error by showing that the failure to provide

notice was harmless beyond a reasonable doubt.

And application of any lesser standard of review

would, of course, require resolution of the consti-

tutional question avoided in Burns. The better

course is to remand the matter to the court of ap-

peals.

If the Court chooses to address the question,

the record makes clear that the failure to provide

notice in this case was not harmless. The district

court entered the statutory maximum sentence

based on an assumption about Mr. Irizarry’s fu-

ture dangerousness. That assumption was not

tested at the sentencing hearing, however, be-

cause defense counsel was never informed of the

contemplated grounds for an above-Guidelines

sentence. The record in this case demonstrates

me ee ee ee ee ee ee, ee ee ee eee Se a ee Le ee

Be Oe ee a Te UY Mm emake eee Oe en ae eee ay ae &

that, had counsel received reasonable notice, he

would have introduced expert testimony challeng-

ing the court’s assumption about future danger-

ousness by showing that Mr. Irizarry’s symptoms

could be successfully treated through antipsy-

chotic medications and psychotherapy. He also

would have sxown that alternative forms of su-

pervision would be preferable to incarceration,

which was likely to increase his delusional ide-

ations. Evidence of all of this was readily avail-

able to defense counsel because it had been pre-

pared for the competency hearing, but the testi-

mony was cut short by the district court. A new

hearing is required so that the district court can

impose a sentence after a process by which the

adversarial process has tested the district court’s

assumptions about Mr. Irizarry and his future

dangerousness.

ARGUMENT

I. THE DISTRICT COURT IN

FAILING TO PROVIDE REASONABLE

NOTICE BEFORE IMPOSING AN

ABOVE- GUIDELINES SENTENCE

UNDER BOOKER

The district court erred in concluding that it

had authority to enter a sentence above the

Guidelines range without providing reasonable

notice of the contemplated grounds for that ac-

tion. As this Court explained in Burns v. United

States, 501 U.S. 129 (1991), the text and purposes

of Rule 32, the proper functioning of the adversar-

ial process, and serious due process concerns

compel the conclusion that a district court must

* > - t =

CN ae ee ee ee ee ey ee ee ee ee eee oe oe. ee ee ae ee eee SQ Ne ee

provide reasonable notice to a criminal defendant

before imposing a sentence greater than that sug-

gested by the Guidelines. Nothing in this Court’s

decision in United States v. Booker, 543 U.S. 220

(2005), alters that analysis. To the contrary, by

expanding the discretion of the sentencing court,

Booker made the requirement of reasonable notice

more rather than less important to the full and

fair adversarial testing of the grounds for the sen-

tence.

A. Rule 32 Compels A Sentencing Court

To Provide Reasonable Notice Of The

Contemplated Grounds For An Above-

Guidelines Sentence Based On Section

3553(a)

1. In Burns, this Court considered whether a

district court was authorized to depart from the

then-mandatory Guidelines range “without first

notifying the parties that it intend[ed] to depart.”

501 U.S. at 131. There, the government had not

requested a departure before the hearing, and the

PSR stated that there were “no factors that would

warrant departure from the guideline sentence.”

Id. Notwithstanding the absence of a provision

“expressly obliging the district court to announce

that it is contemplating to depart sua sponte,” the

Court held that, for three reasons, such a re-

quirement was implicit in Rule 32 of the Federal

Rules of Criminal Procedure. Id. at 136.

First, the Court identified a textual basis for

the notice requirement. It observed that Rule

32(aX1), now codified as Rule 32(iX1XC), provides

both parties with an opportunity to comment on

, 4 -

— a ee OL ee ee “ >

. ee eee Se” ee ee ee eee ee ee ae oe. a eS eet

the PSR and other matters related to the proper

sentence. Burns, 501 U.S. at 132; Fed. R. Crim.

P. 324i 1C) (“At sentencing, the court . . . must

allow the parties’ attorneys to comment on the

probation officer's determinations and other mat-

ters relating to an appropriate sentence.”). It

would make no sense, the Court reasoned, “to im-

pute to Congress an intent that a defendant have

the right to comment on the appropriateness of a

sua sponte departure but not the right to be noti-

fied that the court is contemplating such a rul-

ing.” Burns, 501 U.S. at 135-36 (emphasis added).

: Second, the Court held that failing to provide

notice of a sua sponte departure would be “incon-

sistent with Rule 32’s purpose of promoting fo-

| cused, adversarial resolution of the legal and fac-

: tual issues relevant to fixing Guidelines sen-

tences.” Id. at 137. In the absence of a notice re-

;

« »

Se ee ee Ts ee ee ee

quirement, the Court explained, “[a]Jt best” the

parties might “address possible sua sponte depar-

tures in a random and wasteful way by trying to

anticipate and negate every conceivable ground

on which the district court might choose to depart

on its own initiative,” while “[a]t worst, and more

likely, the parties will not even try to anticipate

such a development,” leaving the contemplated

_- grounds for departure untested by the adversarial

| process. Id.

Third, the Court’s construction of Rule 32

avoided “the serious question whether notice in

this setting is mandated by the Due Process

Clause.” Id. at 138. For those reasons, the Court

held that “before a district court can depart up-

ern Re ee See ea eee ee eee ee.) ee

ward on a ground not identified as a ground for

upward departure either in the presentence re-

port or in a prehearing submission by the Gov-

ernment, Rule 32 requires that the district court

give the parties reasonable notice that it is con-

templating such a ruling.” Id.

Each of the reasons that justified a notice re-

quirement for Guidelines departures in Burns ap-

plies with equal or greater force in the case of an

above-Guidelines sentence based on the Section

3553(a) factors.

2. There are two textual bases for a require-

ment of reasonable notice under these circum- —

stances. Rule 32 was amended in 2002 to include

paragraph (h), which provides that:

Before the court may depart from the appli-

cable sentencing range on a ground not

identified for departure either in the pre-

sentence report or in a party’s prehearing

submission, the court must give the parties

reasonable notice that it is contemplating

such a departure. The notice must specify

any ground on which the court is contem-

plating a departure.

Fed. R. Crim. P. 32(h). The new provision was in-

tended to codify the holding of Burns. Fed. R.

Crim. P. 32 advisory committee notes (2002

amendments) (“Rule 32(h) is a new provision that

reflects Burns ....”). Although the term “depar-

ture” often refers to a non-Guidelines sentence

imposed on grounds specified in Chapters 4 and 5

of the Guidelines, Rule 32(h) uses that term only

because it was promulgated before this Court’s

decision in Booker and reflects the terminology of

the then-mandatory Guidelines regime. There is

no reason to believe that the Court in Burns or

the drafters of Rule 32(h) intended to exclude any

above-Guidelines sentences from the notice re-

quirement. See also note 4 infra.

In addition, Rule 32 continues to afford parties

an opportunity “to comment” on the PSR “and

other matters relating to an appropriate sen-

tence.” Fed. R. Crim. P. 32(i1)(C). As this Court

reasoned in Burns, a right to comment implies a

right to make informed comment, and that right

would have “little reality or worth” without giving

counsel reasonable notice of the grounds on which

the district court is contemplating an above-

Guidelines sentence based on Section 3553(a).

501 U.S. at 136 (quoting Mullane v. Cent. Hano-

ver Bank & Trust Co., 339 U.S. 306, 314 (1950));

see United States v. Anati, 457 F.3d 233, 236 (2d

Cir. 2006) (“[T]he same reasoning that persuaded

the Supreme Court [in Burns] to apply the com-

ment opportunity . . . to sua sponte departures

under the mandatory Guidelines regime” applies

to a “non-Guidelines sentence under the advisory

Guidelines regime.”).

3. Further, a failure to provide reasonable no-

tice of the contemplated grounds for an above-

Guidelines sentence based on the Section 3553(a)

factors would contravene the purpose of Rule 32

to promote the focused, adversarial testing of

those grounds. Burns, 501 U.S. at 137.

The Guidelines continue to play a crucial role

in the sentencing process after Booker. Because

Section 3553(a)(4) requires that the district court

consider the Guidelines range in every case,

Booker, 543 U.S. at 246, a district court “should

begin all sentencing proceedings by correctly cal-

culating the applicable Guidelines range.” Gall v.

United States, 128 S. Ct. 586, 596 (2007). A dis-

trict court must also “give serious consideration to

the extent of any departure from the Guidelines”

and must provide “sufficient justifications” for the

sentence imposed. Id. at 594. Although a sen-

tencing court may not presume that a Guidelines

sentence should apply, Rita v. United States, 127

S. Ct. 2456, 2465 (2007), rehearing denied, 128 S.

Ct. 19 (2007), “[als a matter of administration and

to secure nationwide consistency,” the Guidelines

serve as “the starting point and the initial bench-

mark” in every case. Gall, 128 S. Ct. at 596.

The concerns articulated by the Court in

Burns therefore apply with equal force to sen-

tences above the Guidelines range under Booker.

Rule 32 was designed to “promotie] focused, ad-

versarial resolution of the legal and factual is-

sues” at sentencing. Burns, 501 U.S. at 137. As

the Court explained in Burns, without notice of

the contemplated grounds for departure, “[a]t best

. .. parties will address possible sua sponte depar-

tures in a random and wasteful way by trying to

anticipate and negate every conceivable ground

on which the district court might choose to depart

on its own initiative.” Jd. “At worst, and more

likely,” the Court warned, “the parties will not

even try to anticipate such a development” and

the contemplated grounds for deviating from the

Guidelines will go entirely untested. Jd. Without

notice of the contemplated grounds for an above-

Guidelines sentence based on Section 3553(a), the

same potential exists that the parties will waste

their efforts by shooting in the dark or that they

will abandon the effort entirely. United States v.

Evans-Martinez, 448 F.3d 1163, 1167 (9th Cir.

2006) (because a district court after Booker “has

the discretion to sentence both above and below

the range suggested by the Guidelines,” the par-

ties “must receive notice the court is contemplat-

ing such a possibility in order to ensure that is-

sues with the potential to impact sentencing are

fully aired”) (internal citations omitted).

4. Construing Rule 32(h) to require notice of a

Guidelines departure — but not an above-

Guidelines sentence based on Section 3553(a)—

would also create an artificial distinction. Factors

that have long served as grounds for Guidelines

departures, such as the inadequacy of the defen-

dant’s criminal history, U.S.S.G. § 4A1.1, or the

defendant’s extreme conduct, U.S.S.G. § 5K2.8,

can now be reformulated as grounds for a non-

Guidelines sentence under Section 3553(a). See

18 U.S.C. § 3553(aX1) (requiring that the sentenc-

ing court consider “the nature and circumstances

of the offense and the history and characteristics

of the defendant”). Because the same ground can

justify the same above-Guidelines sentence under

either the Guidelines or Section 3553(a), it would

make no sense for the notice requirement to turn

on the district court’s characterization of the basis

for its sentence.

The distinction would create administrability

problems as well. Last year, district courts im-

posed approximately 8,535 sentences outside the

Guidelines range. More than half of those sen-

tences (57.5%, or 4,906 sentences) were based on

Booker or the Section 3553(a) factors, and fewer

than one-quarter (22.4%, or 1,916 sentences) were

Guidelines departures. In the remaining cases,

however, the district court either relied on both

the Guidelines and Booker or Section 3553(a)

(11.8%, or 1,007 sentences), or specified neither

basis (8.3%, or 706 sentences).4 Under a rule that

limits Rule 32(h) to departures under the Guide-

lines, if the district court fails to specify the basis

for its sentence or purports to have imposed both

a Guidelines departure and a sentence under

Booker, the parties would have no way of knowing

whether they were entitled to notice. In such

cases, Rule 32(h) would be of “little reality or

worth.” Burns, 501 U.S. at 136 (quoting Mullane,

339 U.S. at 314).

5. This Court’s decision in Rita v. United

States confirms that Rule 32(h) applies equally to

Guidelines departures and Booker variances. In

describing the order of operations at sentencing

after Booker, the Court emphasized that a district

court “as a matter of process” must “subject[] the

* United States Sentencing Commission, FY2007 4th

Quarterly Sentencing Update, at Table 1 & nn.1-5 (Dec. 5,

2007), http://www.ussc.gov/sc_cases/Quarter_Report_ 4th_

07.pdf. These figures reflect sentences from October 1,

2006, to September 30, 2007. They include both above- and

below-Guidelines sentences, but exclude government-