# Petitioners Brief — Irizarry v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Brief
- **Published:** January 1, 2008
- **Citation:** 553 U.S. 708

## Text

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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

iv

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

Vv

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

4
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OS ES ae ee ee ee ge a Ae ae. ee PO, ee Oe ee PF eee Se ee Oe Pe ey ee ee

vi

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

1

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

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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. :

4

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

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a

5

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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7

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

8

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

10

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 -

11

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

12

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.

13

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

14

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

15

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 &

16

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

17

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

18

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

:
4
7
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4
,
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19

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

20

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

21

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

22

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.

23

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-
sponsored departures. See id. n.6.

24

defendant’s sentence to the thorough adversarial
testing contemplated by federal sentencing proce-
dure.” Rita, 127 S. Ct. at 2465. It expressly re-
lied on Rule 32(h), Rule 32(i1XC), and Burns,
which underscore the “importance of notice and
[a] meaningful opportunity to be heard at sen-
tencing.” The Court’s invocation of notice as a
prerequisite to the mandatory adversarial testing
of a post-Booker sentence subject to reasonable-
ness review suggests that notice remains manda-
tory for both departures and variances under the
current Sentencing Guidelines regime.

6. Finally, allowing the district court to im-
pose a non-Guidelines sentence without reason-
able notice to the defendant would raise precisely
the “serious” due process question that the Court
in Burns sought to avoid. 501 U.S. at 138. The
Fifth Amendment guarantee of due process re-
quires “at a minimum .. . that deprivation of life,
liberty or property by adjudication be preceded by
notice and opportunity for hearing appropriate to
the nature of the case.” Mullane, 339 U.S. at 313.
The right to notice and a hearing continues at
trial and at sentencing. Gardner v. Florida, 430
U.S. 349, 356, 358 (1977) (plurality opinion) (hold-
ing that the failure to provide defense counsel ac-
cess to evidence violates due process by depriving
the defendant of an “opportunity . . . to challenge
the accuracy or materiality” of the information).

This Court has held that due process requires
the district court to provide the defendant with an
opportunity to correct misinformation that may
serve as a basis for the sentence. Townsend v.

25

Burke, 334 U.S. 736, 741 (1948). In Townsend,
the sentencing court relied on two prior convic-
tions from cases where the defendant, in fact, had
been acquitted. Jd. at 740. Justice Jackson’s
opinion for the Court held that the sentence vio-
lated due process because it is “a requirement of
fair play” that the sentence is “not predicated on
misinformation.” Jd. at 741. Consistent with that
requirement, the Federal Rules of Criminal Pro-
cedure guarantee that the parties receive notice
throughout the sentencing process. See Fed. R.
Crim. P. 32(c), (d1)(DXii), (d)(1)(E), (e)(2), (A,
(iX1)(C). Section 3553(a) also imposes a statutory
requirement that the district court impose a sen-
tence “sufficient, but not greater than necessary”
to comply with the purposes set forth in Section
3553(aX(2).

B. The Court Of Appeals Erred In Hold-
ing That No Notice Is Required For
Non-Guidelines Sentences Under Sec-
tion 3553(a)

1. The court of appeals held that Rule 32 im-
poses no notice requirement for Booker variances
because, after Booker, parties are “inherently on
notice” of all potential grounds for a non-
Guidelines sentence under Section 3553(a). J.A.
399-400. That holding echoed the district court’s
conclusion that Rule 32 is “out the window” after
Booker. Id. at 377. Of course, the court of appeals
was correct that the defense counsel and the
prosecutor “know” that there are hundreds or
thousands of factors that might lead a district
judge to choose a sentence outside the Guidelines

26

range. But the same was true under the manda-
tory Guidelines regime, and it was precisely that
situation that led to this court’s decision in Burns.
In that case, the defendant was “inherently” on
notice of Chapters 4 and 5 of the Sentencing
Guidelines, which set out a wide range of permis-
sible grounds for departure. United States v.
Atencio, 476 F.3d 1099, 1104 (10th Cir. 2007) (al-
though defendants are “constructively ‘on notice’
of §3553(a) factors post-Booker,” they were
“equally aware of the specified circumstances for
departure under the Guidelines” under the pre-
Booker regime); United States v. Cousins, 469
F.3d 572, 580 (6th Cir. 2006). Such generalized
notice did not sway the Court in Burns, and it
should not alter the analysis here.

To the contrary, the need for notice is even
more acute after Booker because that decision ex-
ponentially expanded the universe of reasons that
a district court may give for sentencing outside
the Guidelines range. In Burns, the Court rea-
soned that “[blecause the Guidelines place essen-
tially no limit on the number of potential factors
that may warrant a departure, no one is in a posi-
tion to guess when or on what grounds a district
court might depart, much less to ‘comment’ on
such a possibility in a coherent way.” 501 U.S. at
136-37 (citation omitted). After Booker, however,
a district court’s discretion is even broader. Sec-
tion 3553(a) lists broad factors such as “the na-
ture and circumstances of the offense,” the “his-
tory and characteristics of the defendant,” and the
need “to protect the public,” 18 U.S.C. §
3553(aX1), (aX2XC) (2008), which serve as

27

springboards to a wide range of relevant sentenc-
ing considerations. In addition, after Booker, a
district court is free to impose a non-Guidelines
sentence based on factors such as age, education,
or family ties, that were generally discouraged
under the Guidelines, Rita, 127 S. Ct. at 2473,
and on “policy considerations, including dis-
agreements with the Guidelines,” Kimbrough v.
United States, 128 S. Ct. 558, 570 (2007).

The greater number of permissible reasons for
imposing a non-Guidelines sentence makes it
even more difficult for counsel to “guess” the dis-
trict court’s contemplated grounds and to offer
“coherent” commentary on those grounds at sen-
tencing. See United States v. Davenport, 445 F.3d
366, 371 (4th Cir. 2006) (reasoning that “(t]he
need for such notice is as clear now as before
Booker” because “(t)here is ‘essentially no limit on
the number of potential factors that may warrant
a departure’ or a variance”) (quoting Burns, 501
U.S. at 136-37).

A recent amendment to Rule 32 confirms the
error of the court of appeals’ view. On Decem-
ber 1, 2007, Rule 32(d)(2XF) was amended to pro-
vide that a district court may “require[]” the pro-
bation officer to ensure that the PSR contains “in-
formation relevant to the factors under 18 U.S.C.
§ 3553(a).” Under the court of appeals’ approach,
however, such information should never be neces-
sary in the PSR because the defendant is already
“inherently” on notice of every imaginable ground
for an above-Guidelines sentence under Booker.
As amended, Rule 32 therefore presupposes that

28

Section 3553(a) does not, of its own force, provide
constructive notice to criminal defendants of how
the factors might apply in their case.

2. Other courts have reasoned that Rule 32(h)
cannot extend to non-Guidelines sentences under
Booker because the term “departure” refers only
to sentences calculated using the explicit “depar-
ture” provisions of Chapters 4 and 5 of the Guide-
lines. See, e.g., United States v. Mejia-Huerta, 480
F.3d 713, 722 (5th Cir. 2007), petition for cert.
filed, No. 06-1381 (Apr. 18, 2007). That conten-
tion is mistaken.

By its terms, Rule 32(h) applies to every “de-
parture” from the Guidelines. That word ordinar-
ily means any divergence or deviation from a
rule.5 Because a sentence above the Guidelines
range after Booker fits that definition, it falls
within the ordinary meaning of Rule 32(h).

It is true that, at the time Burns was decided
and Rule 32(h) was enacted, the term “departure”
generally referred to a non-Guidelines sentence
imposed for a reason specified in the Guidelines
themselves. See U.S.S.G. ch. 5, pt. K. The Sen-
tencing Commission had made clear, however,
that because its list of possible grounds for depar-
ture was “not exhaustive,” there were “different

5 See Webster's Third New International Dictionary of
the English Language 604 (1993) (defining “departure” as a
“deviation or divergence esp. from a rule, course of action,
plan, or purpose”); American Heritage Dictionary of the
English Language 487 (4th ed. 2000) (defining “departure”
as “|a] divergence or deviation, as from an established rule,
plan, or procedure”).

29

kinds of departure,” including a category of “un-
guided” departures based on “grounds not men-
tioned in the guidelines.” U.S.S.G. ch. 1, pt.
A4(b). It was this category of departure that led
the Court in Burns to conclude that “the Guide-
lines place essentially no limit on the number of
potential factors that may warrant a departure.”
501 U.S. at 136. Against that backdrop, there is
no reason to believe that, by using the term “de-
parture,” the Court in Burns or the drafters of
Rule 32(h) intended to exclude from the notice re-
quirement any category of non-Guidelines sen-
tence—least of all on the theory that it was “not
mentioned in the guidelines.” As this Court ob-
served in Burns, “not every silence is pregnant.”
501 U.S. at 136 (quoting State of Illinois Dept. of
Pub. Aid v. Schweiker, 707 F.2d 273, 277 (7th Cir.
1983)). f

Il. THE DISTRICT COURT’S FAILURE TO
PROVIDE REASONABLE NOTICE BE-
FORE IMPOSING AN ABOVE-
GUIDELINES SENTENCE REQUIRES A
NEW SENTENCING HEARING

The Government concedes that the district
court erred by failing to provide reasonable notice
of the contemplated grounds for its above-
Guidelines sentence. Gov't Br. in Opp. 13. It con-
tends, however, that the error was harmless be-
cause it “had no impact on the outcome of peti-
tioner’s sentencing proceeding.” Id. The court of
appeals did not reach that question, and this
Court should remand rather than consider it in
the first instance.

30

In any event, the Government’s contention is
mistaken. As the transcript of the competency
hearing indicates, defense counsel had available
expert evidence challenging the sole basis for the
district court’s decision to enter a sentence above
the Guidelines range, and he would have intro-
duced that evidence at sentencing if he had re-
ceived reasonable notice.

1. Because the court of appeals held that the
district court committed no error, J.A. 399, it did
not reach the question whether the lack of notice
was prejudicial to Mr. Irizarry. Under those cir-
cumstances, this Court’s “normal practice” is to
“remand th[e) case to the Court of Appeals for it
to consider in the first instance whether the...
error was harmless.” Neder v. United States, 527
U.S. 1, 25 (1999); see Carella v. California, 491
U.S. 263, 266-67 (1989). The Court followed that
approach in Burns, where the parties briefed the
harmless-error question, see Br. for Petitioner,
Burns v. United States, No. 89-7260, at 37-42, but
the Court elected to remand for further proceed-
ings without deciding whether the error was
prejudicial, see Burns, 501 U.S. at 133.®

Remand is particularly appropriate in this
case because otherwise this Court would have to
resolve precisely the due process question it
sought to avoid in Burns. In this case, Mr. Iri-
zarry promptly objected to the lack of notice, J.A.

6 The court of appeals in Burns then vacated the sen-
tence and remanded to the district court for resentencing.
United States v. Burns, 946 F.2d 1567 (D.C. Cir. 1991) (Ta-
ble).

31

377, so the error may be disregarded only if it did
not affect his substantial rights. Fed. R. Crim. P.
52(a); United States v. Olano, 507 U.S. 725, 734
(1993). If “notice in this setting is mandated by
the Due Process Clause”—an issue the Court in
Burns scrupulously avoided, 501 U.S. at 138—
then the error in this case is constitutional in na-
ture, and the Government bears the burden of
proving harmlessness beyond a reasonable doubt.
Chapman v. California, 386 U.S. 18, 24 (1967).7
As shown below, the Government cannot possibly
prevail under the harmless beyond a reasonable
doubt standard. And if the Court were to review
the record for harmlessness under a less rigorous
standard, it could only do so after resolving the
serious constitutional question avoided in Burns.
Rather than reaching out to resolve the due proc-
ess question, this Court should remand for the
court of appeals to consider in the first instance
whether the failure to provide notice warrants a
new sentencing hearing.

7 Indeed, two courts of appeals, including the court be-
low, have held that because “the right to prior notice of the

grounds for an upward departure implicates the due process

clause of the Fifth Amendment,” a violation of the rule an-
nounced in Burns is constitutional error subject to the stan-
dard articulated in Chapman. United States v. Paslay, 971
F.2d 667, 674 (11th Cir. 1992); accord United States v. Lo-
preato, 83 F.3d 571, 577 (2d Cir. 1996). Two other courts of
appeals have reserved the question. See Jnited States v.
Calzada-Maravillas, 443 F.3d 1301, 1307 n.3 (10th Cir.
2006); United States v. Himler, 355 F.3d 735, 743 (3d Cir.
2004).

—

32

2. If the Court reaches the question, a new
sentencing hearing is warranted because the re-
cord demonstrates that the lack of notice was
prejudicial in this case. The district court entered
the maximum possible sentence under the stat-
ute, outside the Guidelines range, based on a con-
clusion that Petitioner would continue “in this
conduct regardless of what this court does and re-
gardless of what kind of supervision he is under.”
J.A. 374. As the court of appeals recognized, fu-
ture dangerousness was the sole basis-for the dis-
trict court’s selection of a sentence above the
Guidelines range. Id.; see 18 US.C.
§ 3553(a)(2C) (2008).

Yet the district court’s conclusion about Mr.
Irizarry’s future dangerousness went entirely un-
tested at the sentencing hearing. With reason-
able notice of the contemplated grounds for sen-
tencing above the Guidelines range, Mr. Irizarry’s
counsel could have introduced expert testimony
demonstrating: (1) that Mr. Irizarry’s threats
against his ex-wife were fueled by his mental ill-
ness; (2) that his symptoms, including his para-
noid ideations, could be successfully treated
through antipsychotic medications and psycho-
therapy; and (3) that alternative forms of supervi-
sion—so long as they included long-term psychi-
atric treatment—would be preferable to incar-
ceration, which is likely to increase his delusional
ideations. The Court need not speculate about
whether such evidence was available because
those were precisely the conclusions reached by
the expert witness for the defense, whose com-
ments on future dangerousness at the competency

33

hearing were disallowed by the district court.
J.A. 188-89. Because the record reveals that
there was available evidence undermining the
court’s conclusion about Mr. Irizarry’s future dan-
gerousness, there is no doubt that with proper no-
tice defense counsel would have challenged the
sole ground for the district court’s unannounced
variance from the Guidelines.

The Government contends (Br. in Opp. 14)
that the error is harmless because the PSR de-
scribed Petitioner’s conduct, and the district court
relied on the offense conduct in determining fu-
ture dangerousness. In Burns, however, there
was no dispute that the PSR contained a full de-
scription of the offense conduct that served as the
basis of the district court’s upward departure. See
Br. for Petitioner, Burns v. United States, No. 89-
7260, at 37-38. This Court nonetheless held that
notice of the particular grounds for departure is
essential to the full and fair adversarial testing of
the grounds for the sentence, emphasizing that
counsel is in no position “to guess when or on
what grounds a district court might depart.”
Burns, 501 U.S. at 136-37. Accordingly, courts of
appeals have “reject(ed] the government’s conten-
tion that, because the PSR contained a full recita-
tion of the defendant’s criminal conduct, this put
defendant on notice of the factors on which the
court relied for the upward departure.” United
States v. Mangone, 105 F.3d 29, 35 (1st Cir. 1997);
see Calzada-Maravillas, 443 F.3d at 1301; United
States v. Carter, 203 F.3d 187, 190-91 (2d Cir.
2000); United States v. Nuno-Para, 877 F.2d 1409,
1415 (9th Cir. 1989).

34

The Government also attempts to gloss over
the prejudice in this case by noting that the sen-
tence was “only nine months higher than the top
of the advisory Guidelines range.” Br. in Opp. 14.
Mr. Irizarry, however, 1s prejudiced by any erro-
neous increase in his prison sentence, even if it
lasts “only” nine months. See Glover v. United
States, 531 U.S. 198, 203 (2001) (rejecting the
suggestion that “a minimal amount of additional
time in prison cannot constitute prejudice”). Al-
though the upward variance in this case was not
especially large in absolute terms, it was signifi-
cant relative to the Guidelines range and the
statutory maximum. A rule that looked only to
the size cf the variance would have the effect of
insulating sentencing errors from review in cases
involving shorter sentences and low statutory
maximums. Because the record demonstrates
that Mr. Irizarry could have presented expert evi-
dence challenging the sole basis for the district
court’s above-Guidelines sentence, the Govern-
ment cannot demonstrate that the error in this
case was harmless. |

* * *

35

CONCLUSION

The judgment of the court of appeals should be
reversed and remanded for further proceedings.

Respectfully submitted,
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. Scortt*
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

February 21, 2008

lsa

STATUTORY APPENDIX

1. The Fifth Amendment to the United States
Constitution provides in pertinent part: “No per-
son shall . . . be deprived of life, liberty, or prop-
erty, without due process of law.”

2. Section 3553(a) of Title 18 of the United
States Code provides in relevant part:

The court shall impose a sentence suffi-
cient, but not greater than necessary, to
comply with the purposes set forth in para-
graph (2) of this subsection. The court, in
determining the particular sentence to be
imposed, shall consider—

(1) the nature and circumstances of the
offense and the history and characteris-
tics of the defendant;

(2) the need for the sentence imposed—

(A) to reflect the seriousness of the
offense, to promote respect for the
law, and to provide just punishment
for the offense;

(B) to afford adequate deterrence to
criminal conduct;

(C) to protect the public from further
crimes of the defendant; and

(D) to provide the defendant with
needed educational or vocational
training, medical care, or other cor-
rectional treatment in the most effec-
tive manner;

2sa

(3) the kinds of sentences available;

(4) the kinds of sentence and the sen-
tencing range established for—

(A) the applicable category of offense
committed by the applicable category
of defendant as set forth in the
Guidelines—

* * *

(5) any pertinent policy statement—

(A) issued by the Sentencing Com-
mission ...

(B) that, except as provided in sec-
tion 3742(g), is in effect on the date
the defendant is sentenced.

(6) the need to avoid unwarranted sen-
tence disparities among defendants with
similar records who have been found
guilty of similar conduct; and

(7) the need to provide restitution to any
victims of the offense.

18 U.S.C. § 3553(a).

3sa

3. Rule 32 of the Federal Rule of Criminal
Procedure provides in relevant part:

(c) Presentence Investigation.
(1) Required Investigation.
(A) In General.

The probation officer must conduct a
presentence investigation and submit a re-
port to the court before it imposes sentence
unless:

(i) 18 U.S.C. § 3593(c) or another
statute requires otherwise; or

(ii) the court finds that the informa-
tion in the record enables it to meaning-
fully exercise its sentencing authority un-
der 18 U.S.C. § 3553, and the court ex-
plains its finding on the record.

** *

(2) Interviewing the Defendant.

The probation officer who interviews a de-
fendant as part of a presentence investiga-
tion must, on request, give the defendant's
attorney notice and a reasonable opportu-
nity to attend the interview.

(d) Presentence Report.

(1) Applying the Advisory Sentencing
Guidelines. The presentence report must:

4sa

(A) identify all applicable guidelines
and policy statements of the Sentencing
Commission;

(B) calculate the defendant's offense
level and criminal history category;

(C) state the resulting sentencing range
and kinds of sentences available;

(D) identify any factor relevant to:
(i) the appropriate kind of sentence, or

(ii) the appropriate sentence within
the applicable sentencing range; and

(E) identify any basis for departing from
the applicable sentencing range.

(2) Additional Information. The presen-
tence report must also contain the following
information:

(A) the defendant's history and charac-
teristics, including:
(i) any prior criminal record;
(ii) the defendant's financial condi-
tion; and

(iii) any circumstances affecting the
defendant's behavior that may be helpful in
imposing sentence or in correctional treat-
ment;

(B) verified information, stated in a
nonargumentative style, that assesses the
financial, social, psychological, and medical
impact on any individual against whom the
offense has been committed;

5sa

(C) when appropriate, the nature and
extent of nonprison programs and resources
available to the defendant;

(D) when the law provides for restitu-
tion, information sufficient for a restitution
order;

(E) if the court orders a study under 18
U.S.C. § 3552(b), any resulting report and
recommendation; and

(F) any other information that the court
requires, including information relevant to
the factors under 18 U.S.C. § 3553(a).

(3) Exclusions.

The presentence report must exclude the
following:

(A) any diagnoses that, if disclosed,
might seriously disrupt a rehabilitation
program,

(B) any sources of information obtained
upon a promise of confidentiality; and

(C) any other information that, if dis-
closed, might result in physical or other
harm to the defendant or others.

(e) Disclosing the Report and Recommenda-
tion.

(1) Time to Disclose.

Unless the defendant has consented in
writing, the probation officer must not
submit a presentence report to the court or

6sa

disclose its contents to anyone until the de-
fendant has pleaded guilty or nolo conten-
dere, or has been found guilty.

(2) Minimum Required Notice.

The probation officer must give the pre-
sentence report to the defendant, the de-
fendant’s attorney, and an attorney for the
government at least 35 days before sentenc-

ing unless the defendant waives this mini-
mum period.

(3) Sentence Recommendation.

By local rule or by order in a case, the
court may direct the probation officer not to
disclose to anyone other than the court the
officer’s recommendation on the sentence.

(f) Objecting to the Report. -
(1) Time to Object.

Within 14 days after receiving the pre-
sentence report, the parties must state in
writing any objections, including objections
to material information, sentencing guide-
line ranges, and policy statements con-
tained in or omitted from the report.

(2) Serving Objections.

An objecting party must provide a copy of
its objections to the opposing party and to
the probation officer.

(3) Action on Objections.

7sa

After receiving objections, the probation
officer may meet with the parties to discuss
the objections. The probation officer may
then investigate further and revise the pre-
sentence report as appropriate.

(g) Submitting the Report.

At least 7 days before sentencing, the pro-
bation officer must submit to the court and
to the parties the presentence report and
an addendum containing any unresolved
objections, the grounds for those objections,
and the probation officer's comments on
them.

(h) Notice of Possible Departure From Sen-
tencing Guidelines.

Before the court may depart from the ap-
plicable 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.

(i) Sentencing.
(1) In General. At sentencing, the court:

(A) must verify that the defendant and
the defendant's attorney have read and dis-

8sa

cussed the presentence report and any ad-
dendum to the report;

(B) must give to the defendant and an
attorney for the government a written
summary of—or summarize in camera—
any information excluded from the presen-
tence report under Rule 32(d3) on which
the court will rely in sentencing, and give
them a reasonable opportunity to comment
on that information;

(C) must allow the parties’ attorneys to
comment on the probation officer's deter-
minations and other matters relating to an
appropriate sentence; and

(D) may, for good cause, allow a party to
make a new objection at any time before
sentence is imposed.

(2) Introducing Evidence; Producing a
Statement. The court may permit the par-
ties to introduce evidence on the objections.
If a witness testifies at sentencing, Rule
26.2(a)-(d) and (f) applies. If a party fails to
comply with a Rule 26.2 order to produce a
witness's statement, the court must not
consider that witness's testimony.

(3) Court Determinations. At sentencing,
the court:

(A) may accept any undisputed portion
of the presentence report as a finding of
fact;

(B) must—for any disputed portion of
the presentence report or other contro-

9sa

verted matter—rule on the dispute or de-
termine that a ruling is unnecessary either
because the matter will not affect sentenc-
ing, or because the court will not consider
the matter in sentencing; and

(C) must append a copy of the court's
determinations under this rule to any copy
of the presentence report made available to
the Bureau of Prisons.

(4) Opportunity to Speak.

(A) By a Party. Before imposing sen-
tence, the court must:

(i) provide the defendant's attorney an
opportunity to speak on the defendant's be-
half;

(ii) address the defendant personally
in order to permit the defendant to speak or
present any information to mitigate the
sentence; and

(iii) provide an attorney for the gov-
ernment an opportunity to speak equiva-
lent to that of the defendant's attorney.

(B) By a Victim. Before imposing sen-
tence, the court must address any victim of
a crime of violence or sexual abuse who is
present at sentencing and must permit the
victim to speak or submit any information
about the sentence. Whether or not the vic-
tim is present, a victim’s right to address
the court may be exercised by the following
persons if present:

10sa

(i) a parent or legal guardian, if the
victim is younger than 18 years or is in-
competent; or

(ii) one or more family members or
relatives the court designates, if the victim
is deceased or incapacitated.

(C) In Camera Proceedings. Upon a
party’s motion and for good cause, the court
may hear in camera any statement made
under Rule 32(i4).

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0371%3A04. Public record. Not legal advice.