Respondents Brief — Irizarry v. United States

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No. 06-7517 3-24-08

In the Supreme Court of the United States

RICHARD IRIZARRY, PETITIONER

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

PAUL D. CLEMENT

Solicitor General

Counsel of Record

ALICE S. FISHER

Assistant Attorney General

MICHAEL R. DREEBEN

Deputy Solicitor General

MATTHEW D. ROBERTS

Assistant to the Solicitor

General

SANGITA K. RAO

Attorney

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether Federal Rule of Criminal Procedure 32 re-

quires a district court to provide the parties with notice

before varying under 18 U.S.C. 3553(a) from the

advisory Sentencing Guidelines range based on a ground

not identified in the presentence report or the parties’

submissions.

(I)

TABLE OF CONTENTS

Page

// séabtarsekendsenses 1

D ̃ AI ĩV6A 1

Constitutional provisions, statutes, and rules involved ...... 1

D be vidadetavecesbatewanetedeseuces< 2

t ꝰ²˙u! .. 11

Argument:

I. Rule 32 requires a district court to provide notice

before varying under 18 U.S.C. 3553(a) from the

Sentencing Guidelines range based on a ground not

identified in the presentence report or the parties’

%%% ů ů ůi⁰ . 55 15

A. Rule 32(h), which codifies the holding of

Burns, requires notice before a swa sponte

“departure” from the applicable Guidelines

B. The term “departure” encompasses all

deviations from the Guidelines range,

whether authorized by the Guidelines or by

— / ⅛—ÄÜÜÜ—T—T—T—T—B . 18

C. A notice requirement is also supported by

Rule 324i (1 C), which mandates that the

district court allow the parties to comment

on “matters relating to an appropriate

—t. 5 5ö . 23

D. Notice of all ua sponte deviations from the

Guidelines range is necessary to achieve

the purposes of Rule 32 ..................... 24

E. Construing Rule 32 to mandate notice of

variances would enable courts to avoid

considering whether notice is required by

( ..... 29

iil ee a a or

Table of Contents—Continued: Page

F. The arguments for limiting Rule 32 to

Guidelines departures are not persuasive ...... 30

1. The fact that a Section 3553(a) variance is

always possible does not eliminate the

% A5 5V˙5V 30

2. Requiring notice of Section 3553(a)

variances is not unduly burdensome ....... 32

3. Requiring notice of Section 3553(a)

variances is consistent with the role of

the Guidelines in post-Booker sentencing ... 34

4. Rule 32(h)’s reference to “departure” is not

limited to departures authorized by the

r ͤ ͤA—TÄT—2Ä—ͤͤ TO 35

II. The district court’s failure to give notice before

varying from the Guidelines range was harmless

—.. . ͤ 4646 66 37

A. This Court should decide the harmless

r ͤ -. V . 38

B. Kotteakos governs the harmlessness

EE Q VL 5V*ðV i.. 39

C. The notice deficiency did not affect

petitioner’s presentation at sentencing ........ 41

D. The evidence that petitioner now claims he

would have presented would not have

affected his sentence ..................-e0ec- 45

Ze ab ben cnbeaeeunaan 48

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Cases:

TABLE OF AUTHORITIES

Page

Bennett v. Spear, 520 U. S. 154 (19970ʒůwuʒ ; 38

Burns v. United States, 501 U.S. 129 (19917 passim

Chapman v. California, 386 U.S. 18 (1967) ......... 14, 39

Gall v. United States, 128 S. Ct. 586 (2007) . . . 22, 29, 34, 35

Greenholtz v. Inmates of the Neb. Penal & Corr.

mnie) 30

Kimbrough v. United States, 128 S. Ct. 558 (2007) ...... 31

Kotteakos v. United States, 328 U.S. 750 (1946) ..... 14, 39

Riegel v. Medtronic, Inc., 128 S. Ct. 999 (2008) ......... 20

Rita v. United States, 127 S. Ct. 2456

(C0 oc. ²˙ĩ˙1— ˙˙x˙ . 22, 25, 27, 34

JJ KAMA 24, 31

United States v. Ausburn, 502 F. 3d 313 (3d Cir. 2007),

petition for cert. pending, No. 07-9534 (filed Feb.

r ——T—TTTTVTcc 30

United States v. Baker, 432 F.3d 1189 (11th Cir. 2005)

United States v. Booker, 543 U.S. 220 (2005) ...... 5, 18, 29

United States v. Bradford, 461 F. Supp. 2d 904 (N. D.

Iowa 2006), aff d, 499 F.3d 910 (Sth Cir. 2007), cert.

denied, No. 07-7829 (Feb. 25, 2008) ................ 28

United States v. Calzada-Maroavillas, 443 F.3d 1301

, ee 21, 33

United States v. Carter, 111 F.3d 509 (7th Cir. 1997) .... 43

United States v. Coughlin, 500 F.3d 813 (8th Cir.

— ] ³ ům.u.̃⁰.ͤ ˙ T⅛ 28

Cases—Continued: Page

United States v. Cousins, 469 F.3d 572 (6th Cir.

GG 19, 21

United States v. Davenport, 445 F.3d 366 (4th Cir.

3Lc tens 31

United States v. Dukagjini, 326 F.3d 45 (2d Cir.

2003), cert. denied, 541 U.S. 1092 (2004) ............ 40

United States v. Evans-Martinez, 448 F.3d 1163 (9th

Gonne 19

United States v. Fancher, 513 F.3d 424 (4th Cir. 2008) .. 23

United States v. Fayette, 895 F.2d 1375 (11th Cir.

Dl 43

United States v. Flanders, 491 F.3d 1197 (10th Cir. |

BOOT) .ccccccvcccccccccccvccevevcccvevcvessceees 23 G

United States v. Korson, 243 Fed. Appx. 141 (6th Cir f

P. apabe decane 3 4

United States v. Hastings, 461 U.S. 499 (1983) 28

United States v. Hernandez-Felix, No. O7-10052, g

2007 WL 42921 10 (9th Cir. Dec. 5, 2007 3 @

United States v. Hildebrand, 152 F.3d 756 (8th Cir-),

cert. denied, 525 U.S. 1033 (1998) )) 3

United States v. Himler, 355 F. 3d 735 (3d Cir. 2004) ....42

United States v. Johnson, 529 U.S. 53 (2000)........... 48

United States v. Lane, 474 U.S. 438 (1986) ......... 38,39

United States v. Levine, 477 F.3d 596 (8th Cir.), cert. ;

denied, 127 S. Ct. 3023 (2007) ........ 2.00.00 0e. 26,27

United States v. Meeker, 411 F.3d 736 (6th Cir. 2005) ... 33

United States v. Mejia-Huerta, 480 F.3d 713 (5th Cir. 4

2007), petition for cert. pending, No. 06-1381 (filed 4

D 26, 27, 31, 34, 35, 36

VII

Cases—Continued: Page

United States v. Milton, 147 F.3d 414 (5th Cir. 1998) ... 45

United States v. Mohamed, 459 F.3d 979 (9th Cir.

Zee 26, 43

United States v. Morris, 228 Fed. Appx. 906 (11th

: OS . 28

United States v. Moton, 226 Fed. Appx. 936 (11th

rr . . 28

United States v. Nappi, 243 F.3d 758 (3d Cir. 2001) ..... 33

Drlyitad States v. Orosco-Cortez, No. 06-50270, 2008

: WL 162998 (9th Cir. Jan. 18, 2008) 27

United States v. Patrick, 988 F. 2d 641 (6th Cir.), cert.

denied, 510 U.S. 845 (1998) )) eee 33

United States v. Ramirez, 479 F.3d 1229 (10th Cir.

2007), cert. denied, 128 S. Ct. 1074 (2008) ........... 40

United States v. Reynoso, 254 F 3d 467 (3d Cir. 2001) .. 33

United States v. Santiago, 495 F. 3d 820 (7th Cir.

Ne ee eee sccce 27

United States v. Sitting Bear, 436 F 3d 929 (8th Cir.

eee 21

United States v. Smith, 474 F.3d 888, (6th Cir. 2007) .. . . 26

United States v. Tate, No. 06-6529, 2008 WL 398312

EE 42

United States v. Vampire Nation, 451 F.3d 189 (3d

Cir.), cert. denied, 127 S. Ct. 424 (2006) ....... 21, 32, 34

United States v. Vega-Santiago, No. 06-1558, 2008

WL 451813 (Ist Cir. Feb. 21, 2008) ........... 32, 35, 36

United States v. Walker, 447 F.3d 999 (7th Cir.), cert.

denied, 127 S. Ct. 314 (2006) ................ 25, 27, 35

VIII

Constitution, statutes, rules and guidelines: Page

U.S. Const.:

Amend. V (Due Process Clause) .............

seeed eee

D II

18 U.S.C. 355 (a) (2000 & Supp. V 2005) i

4 erbcccccecccccccccess

18 U.S.C. 35530) (5) (Supp. V 20050)))

18 U.S.C. 3553(b) (2000 & Supp. V. 2005)

18 U.S.C. 2553(b)(1) (Supp. V 2005)... .... 2.2.6... ee.

18 U.S.C. 3553(b)(2) (Supp. V 20050)0u:::

eee OE

18 U.S.C. 3583(e) (2000 & Supp. V 2005)

18 U.S.C. 3742(f (2) (Supp. V 200500)))ꝗ

18 U.S.C. 3742(g\(2) (Supp. V 20050)))00nʒ·

18 U.S.C. 374g NE) (Supp. V 200500

18 U.S.C. 3742(j) (Supp. V 20050): cece eee

18 U.S.C. 5037(c)(1)(b) (Supp. V 2005) ................

18 U.S.C. 5037(e2)(A)(ii) (Supp. V 2005)

18 U.S.C. 5087(¢(2)(B)ii) (Supp. V 2005)

Fed. R. Crim. P. :

E r M N ͤ— R ⁰w! ll

Regulations and guidelines Continued: Page

D ene 22, 32

e ee 16

eee eee 16

eee eee e passim

Zee 11, 12, 17, 23, 25

Rule 32 advisory committee’s notes (2002

EES / ae 17

United States Sentencing Guidelines (2004):

Ch. 1:

§ 1B1.1, comment. (n.1(E)) ............ 12, 19, 20, 36

Ch. 4:

reer. eee 43

EE ae 19, 41, 42, 43

Dee 7, 20

Zr 43

Ch. 5:

. 5, 18, 25

Zr 5, 18, 25

eee eee 20

Z 20

Z 19

Miscellaneous:

D esse 19

eee 19

Miscellaneous—Continued:

United States Sentencing Comm’n, ”reliminary

Quarterly Data Report, Fourth Quarter Release,

Preliminary Fiscal Year 2007 Data, Table 1,

http://www.ussc. gov/sc_cases/Quarter_ Report

4th_07.pdf (visited Mar. 19, 2008) ............ 27, 28, 35

Webster s New International Dictionary (2d ed.

K4EEEEECC7CCCCCCCC

Webster 's Third New International Dictionary of the

English Language (1993))0:

In the Supreme Court of the United States

No. 06-7517

RICHARD IRIZARRY, PETITIONER

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

OPINION BELOW

The opinion of the court of appeals (J.A. 392-400) is

reported at 458 F.3d 1208.

JURISDICTION

The judgment of the court of appeals was entered on

August 1, 2006. The petition for a writ of certiorari was

filed on October 26, 2006. The petition was granted on

January 4, 2008. The jurisdiction of this Court rests on

28 U.S.C. 1254(1).

CONSTITUTIONAL PROVISIONS, STATUTES,

AND RULES INVOLVED

The relevant constitutional provisions, statutes, and

rules are reprinted in an appendix (App., infra, 1a-18a)

to this brief.

(1)

* N

STATEMENT

Following a guilty plea, petitioner was convicted in

the United States District Court for the Southern Dis-

trict of Alabama of making a threatening interstate com-

munication, in violation of 18 U.S.C. 875(c). He was sen-

tenced to five years of imprisonment, to be followed by

three years of supervised release. J.A. 382, 384. The

court of appeals affirmed his sentence. J.A. 392-400.

1. In May 2004, a grand jury in the Southern District

of Alabama charged petitioner with 15 counts of making

a threatening interstate communication, in violation of

18 U.S.C. 875(c). J. A. 19-22. Petitioner pleaded guilty —

to one of the counts, which alleged that, on November 5,

2003, he transmitted an interstate e-mail threatening to

kill or injure his ex-wife and her new husband. /bid.;

J.A. 272-276.

In the factual resumé accompanying his plea, peti- |

tioner acknowledged that his ex-wife had custody of

their two children and that he was “permanently” re-

strained from contacting her or the children and from

“physically abusing, molesting or harassing [them] in :

any way.“ J. A. 274. He also admitted that he “know- .

ingly and willfully” transmitted across state lines the

e-mail threatening to kill his ex-wife and her new hus-

band. J.A. 273-274. The subject heading on the e-mail

was “You have been warned for the very last time for m

patience is gone!” J.A. 273. The text stated in part:

: Books have you read any lately? I have one in partic-

| ular on how to make bombs for who knows if i have

reason to level something. [Think it over for

when the gun is aim and the blood begins to pour it

is then to late. * * * Leah or whom ever are you

willing to die for what you believe asiam? * * * I

see the future i have wanted to avoid now but this is

the only way. No parents is what you children will

have. * * * Leahi hope you have a better plan for

i am coming and you will answer. You and Kim cry-

ing before me and we will see which of you chooses

who over the other when i take aim!

J.A. 273-274. Petitioner admitted that he had sent “doz-

ens of other similar e-mails” threatening his ex-wife, her

new husband, her mother, and others. J.A. 275. He ac-

knowledged that he intended the e-mails “to convey true

threats to kill or injure” those people. /bid. The district

court accepted petitioner’s guilty plea. J.A. 277.

2. a. Several months before accepting petitioner’s

plea, the district court held a hearing to determine

whether petitioner was competent to stand trial. J.A.

25-259. Four witnesses testified—petitioner; K. Lyn

Hillman, petitioner’s counsel at that time; Dr. Rodolfo

Buigas, a forensic psychologist who testified as an ex-

pert for the government; and Dr. Thomas S. Bennett, a

psychologist who testified as an expert for the defense.

Ibid. The court also received psychiatric reports from

both Dr. Buigas and Dr. Bennett. J.A. 2.

Petitioner testified that he made the threats against

his ex-wife and others in retaliation for acts they com-

mitted against him, including purportedly mistreating

his children and preventing him from seeing them. J.A.

33-34, 66-67. Hillman testified that petitioner did not

believe he was mentally ill. J.A. 238. She also testified

that, although petitioner believed his claims that his wife

had threatened him, was involved with the Ku Klux

Klan, and was abusing the children, those claims “were

' Ms. Hillman withdrew as defense counsel before sentencing, and

the court appointed new counsel. J.A. 4.

not true.” J.A. 265; see J.A. 232-234. Hillman also

stated that petitioner had “indicated if he was sentenced

to five years, when he got out, he would kill his ex-wife,

he would also kill his children, and kill her boyfriend.”

J.A. 239.

Dr. Buigas diagnosed petitioner as having an anxiety

disorder and a borderline personality disorder with

paranoid and antisocial features. J.A. 126, 128. Dr.

Buigas concluded that petitioner did not have a “serious

mental illness,” see Forensic Evaluation by Dr. Rodolfo

Buigas 9 (Apr. 28, 2004) (Buigas Report), and that he

was competent to stand trial, J.A. 147. Dr. Buigas fur-

ther concluded that petitioner’s personality disorder was

“long-standing,” “characterological,” and “resistant to

change.” Buigas Report 10-11. Dr. Buigas disagreed

with defense expert Dr. Bennett, who diagnosed peti-

tioner with a delusional disorder that would interfere

with his ability to assist his attorney. J.A. 135, 175, 186.

Dr. Bennett also reported that petitioner “has appar-

ently not been tried on antipsychotic medications, which

may well improve his thinking.” Psychological Evalua-

tion by Dr. Thomas S. Bennett 5 (Feb. 6, 2004) (Bennett

Report). Dr. Buigas agreed that if, contrary to his own

view, petitioner was delusional, antipsychotic medica-

tions “could mitigate” delusional symptoms. J.A. 146.

The district court found that Dr. Buigas’s diagnosis

of petitioner’s mental condition was more likely correct

than Dr. Bennett’s. J.A. 267. The court found that peti-

tioner was not suffering from “delusions” and that his

mental condition was “longstanding and not likely to

change.” J.A. 268-269. Accordingly, the court deter-

mined that petitioner was “not incompetent to stand

trial or to plead guilty.” J.A. 267.

b. After petitioner pleaded guilty but before his sen-

tencing, the district court ordered his examination by

the Bureau of Prisons to determine whether he required

treatment in a special facility. J.A. 288-290. The report

from the Butner Federal Medical Center (FMC) con-

cluded that petitioner could be treated in a prison facil-

ity. See Forensic Evaluation by Butner FMC 14 (Feb.

7, 2005) (Butner FMC Report). The FMC reported,

however, that he had declined psychiatric medication

and that he “currently is not motivated to engage in any

treatment.” Ibid.; see id. at 11. The FMC concluded

that, “if released to the community, [petitioner] would

pose a risk of harm to his ex-wife and anyone associated

with her, as well [as] possibly his children.” Id. at 14.

3. Before petitioner was sentenced, this Court de-

cided United States v. Booker, 543 U.S. 220 (2005). To

remedy a Sixth Amendment violation in mandatory

Guidelines, Booker held that the federal Sentencing

Guidelines must be treated as “effectively advisory.” Id.

at 245. Before Booker, a federal district court could not

depart from the Guidelines sentencing range except in

limited circumstances described generally in 18 U.S.C.

3553(b) (2000 & Supp. V 2005) and set out in detail in the

Sentencing Guidelines, see Guidelines § 4A1.3, Ch. 5,

Pts. H and K (2004). After Booker, district courts may

sentence outside the Guidelines range not only when

authorized by the Guidelines but whenever warranted

by the general sentencing criteria in 18 U.S.C. 3553(a)

(2000 & Supp. V 2005). See Booker, 543 U.S. at 245.

Those criteria include, among other things, the need for

the sentence imposed to “protect the public from further

crimes of the defendant.” 18 U.S.C. 3553(a)(2)(C).

4. The presentence report (PSR) prepared for peti-

tioner’s sentencing identified his ex-wife as the primary

victim of his offense. J.A. 406. The PSR stated that she

and petitioner were divorced after she claimed that he

had physically abused her and threatened their children.

J.A. 404, 411. The PSR noted that the judge presiding

over the divorce had found that petitioner “is immi-

nently capable of carrying out his threats” and had is-

sued an order restraining petitioner from contacting his

ex-wife and their children. J.A. 411. The PSR also re-

counted the expert testimony from the competency

hearing. J.A. 412-413.

The PSR ‘urther noted that the 15 e-mails charged

in the May 2004 indictment would be provided to the

court with the PSR. J.A. 405. The government had pro-

vided the e-mails to petitioner at arraignment. See Let-

ter from United States Attorney David P. York (Jan. 22,

2004). In the e-mails, petitioner made repeated and

graphic threats against his ex-wife, his children, his ex-

wife’s new husband, her friends, and her mother; he re-

counted details of his efforts to track down his ex-wife;

and he warned that his patience was wearing thin and he

was about to act. J.A. 420-448.

In calculating petitioner’s offense level under the

Sentencing Guidelines, the PSR recommended several

enhancements, including one premised on evidence that

petitioner intended to carry out the threats in his

e-mails. J.A. 407. The PSR also recommended against

a downward adjustment to petitioner’s offense level for

acceptance of responsibility. J.A. 406. In support, the

PSR noted that petitioner’s cellmate had indicated that,

while petitioner was detained following his arrest, he

had solicited the cellmate to kill his ex-wife’s new hus-

band. /bid. Based on that evidence, the PSR concluded

that petitioner “continues to engage in, or attempt to

engage in, criminal activity.” /bid.

}

In calculating petitioner’s criminal history category,

the PSR determined that several of his past crimes

could not count toward his criminal history score. Those

crimes included petitioner’s 2001 violation of the order

restraining him from contacting his ex-wife and their

children. That conviction was not counted because peti-

tioner had not been represented by counsel. J.A. 410.

Petitioner’s past abuse of his ex-wife and his attempt to

hire someone to kill her new husband were also not in-

cluded in his criminal history. See J.A. 407-411.

The PSR calculated petitioner’s Guidelines sentenc-

ing range as 41 to 51 months of imprisonment. J.A. 415.

The offense carried a statutory maximum of five years

of imprisonment. /bid. In a section entitled “Factors

That May Warrant Departure,” the PSR stated:

Pursuant to Guideline 4A1.3 (Adequacy of Criminal

History Category), the Court may consider whether

or not the defendant’s criminal history category ade-

quately reflects the defendant’s past criminal con-

duct or the likelihood that the defendant will commit

other crimes. If not, the Court may consider impos-

ing a sentence departing from the otherwise applica-

ble guideline range.

J.A. 417.

Petitioner objected to the recommended enhance-

ment based on his intent to carry out his threats, the

denial of an acceptance of responsibility adjustment, and

the PSR’s description of his criminal history. J.A. 295-

296, 300-301. The government had no objections to the

PSR but gave notice that petitioner’s ex-wife would tes-

tify at the sentencing hearing. J.A. 293.

5. In March 2005, the district court held petitioner’s

sentencing hearing. J.A. 298-380. Petitioner’s ex-wife

testified that, during their marriage, petitioner had re-

peatedly abused and threatened her and their children.

J.A. 305-310. She described how they had fled from Cal-

ifornia, where they lived with petitioner, to South

Carolina, where she obtained a divorce and a restraining

order. Ibid. She testified that petitioner was arrested

in 2001 for violating the restraining order, after he

drove cross-country in a van containing a hammer, rope,

tarps, and duct tape, and showed up at her apartment in

South Carolina. J.A. 321-322. She stated that she and

the children then moved to Mobile, Alabama, where she

remarried. J.A. 311-312. Nonetheless, she explained,

petitioner continued to threaten her. He sent her 255

e-mails, many of which contained graphic threats to kill

or injure her, the children, her new husband, her

mother, and her friends. J.A. 312-314, 318. Petitioner

also called his ex-wife’s home in Mobile and sent her new

husband a card with a Mobile postmark. J.A. 316-318.

Petitioner’s ex-wife testified that she was “certain” that

petitioner was “bound and determined to kill, harm, or

at minimum terrorize” her, her family, and her friends.

J. A. 320. She told the court that petitioner “w[ould] not

stop unless he [was] forced to stop,” and she asked the

court to “[p]lease force him to stop.” Ibid.

An FBI agent also testified at the hearing. J.A. 323-

333. The agent stated that, when petitioner was ar-

rested, his automobile contained numerous items indi-

cating his intent to track down his ex-wife and her fam-

ily. J.A. 326-329. The agent testified that, after peti-

tioner’s arrest, he made violent threats against his ex-

wife and others. J.A. 329-330. In particular, he stated

that he intended “to shoot, car bomb, or decapitate [his

ex-wife] and her family and to ‘leave a trail of blood from

here to Alabama’ to protect his kids.” J.A. 394.

2 a

Petitioner’s cellmate also testified. J.A. 333-347.

According to the cellmate, petitioner had stated that he

intended to kill or to hire someone to kill his ex-wife’s

new husband. J.A. 336-338. The cellmate also testified

that petitioner threatened to kidnap his children and to

kill his ex-wife’s mother, whom he blamed for his sepa-

ration from his ex-wife. /bid.

Petitioner testified at the sentencing hearing as well.

J.A. 347-364. He denied many of the alleged incidents of

past abuse. J.A. 360-362. He denied that he intended to

carry out the threats he had made in the past or that his

ex-wife and the children were “in any jeopardy” from

him in the future. J.A. 354, 359, 361-362. He also denied

his cellmate’s claims. J.A. 356-357.

After hearing argument from counsel, the district

court overruled petitioner’s objections to the PSR. J.A.

370-372. The court found that petitioner “did in fact

intend and does have a current intent” to carry out his

threats. J.A. 371. And, in denying an adjustment for

acceptance of responsibility, the court reiterated that

petitioner “still intends to threaten and to terrorize [his

ex-wife] by whatever means he can.” J.A. 371-372.

Although the government requested a sentence at

the high-end of the advisory Guidelines range, the dis-

trict court sentenced petitioner to the statutory maxi-

mum of five years of imprisonment, nine months above

the top of the range. J.A. 373-375. The court stated that

it had concluded that “the guideline range [was] not ap-

propriate” because the court was “sincerely convinced

that [petitioner] would] continue, as his ex-wife testi-

fied, in this conduct regardless of what this court does

and regardiess of what kind of supervision he’s under.”

J.A. 374. Accordingly, the court concluded, “the maxi-

mum time” that petitioner could be “incapacitated” was

“best for society.” /bid.

Petitioner objected that the court had not given no-

tice of its intent to impose an “upward departure” from

“the applicable guideline range.” J.A. 377. The court

overruled the objection, observing that petitioner was on

“notice that the guidelines were only advisory and the

court could sentence anywhere within the statutory

range as defined by the United States Code.” Ibid.

6. The court of appeals affirmed petitioner’s sen-

tence. J.A. 392-400. The court noted that Federal Rule

of Criminal Procedure 32(h), which codified the holding

in Burns v. United States, 501 U.S. 129 (1991), states

that, before a sentencing court “may depart from the

applicable sentencing range on a ground not identified

for departure either in the [PSR] or in a party’s

prehearing submission, the court must give the parties

reasonable notice that it is contemplating such a depar-

ture.” J.A. 397 (quoting Fed. R. Crim. P. 32(h)). The

court of appeals determined, however, that the above-

Guidelines sentence in this case was “not a guidelines

departure” but a “variance” (J.A. 398), based on the dis-

trict court’s consideration of the sentencing criteria in

18 U.S.C. 3553(a) (2000 & Supp. V 2005), “particularly

the need to protect the public, including [petitioner’s]

ex-wife, from further crimes of [petitioner].” J.A. 400;

see J.A. 399 (citing 18 U.S.C. 3553(a)(2)(C)).

The court of appeals then considered whether Rule

32’s notice requirement applies “to a sentence set out-

side the advisory guidelines range based not on the

guidelines’ departure provisions, but on a district court’s

consideration of the section 3553(a) factors.” J.A. 399.

The court of appeals concluded that the notice require-

ment “does not apply to such variances.” Ibid. The

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court reasoned that, lalfter Booker, parties are inher-

ently on notice that the sentencing guidelines range is

advisory and that the district court must consider the

factors expressly set out in section 3553(a) when select-

ing a reasonable sentence between the statutory mini-

mum and maximum. Given Booker, parties cannot claim

unfair surprise or inability to present informed com-

ment—the Supreme Court’s concerns in Burns—when

a district court imposes a sentence above the guidelines

range based on the section 3553(a) sentencing factors.”

J.A. 399-400 (internal citation omitted).

SUMMARY OF ARGUMENT

I. A. In Burns v. United States, 501 U.S. 129 (1991),

this Court held that Federal Rule of Criminal Procedure

32 required the district court to provide notice before

departing from the sentencing range specified by the

Sentencing Guidelines on a ground not identified in the

presentence report or the parties’ submissions. In 2002,

Rule 32 was amended to codify Burns. The amendment

retained the language on which the Court had relied in

Burns, see Fed. R. Crim. P. 32(i)(1)(C), and added a new

subsection. That subsection provides that, Iblefore the

court may depart from the applicable sentencing range

on a ground not identified for departure either in the

presentence report or in a party’s prehearing submis-

sion, 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).

B. The notice requirement of Rule 32(h) applies to

all deviations—i.e., departures—from the Guidelines

range, whether authorized by the Guidelines or Section

3553(a). The ordinary meanings of “depart” and “depar-

—

ture” include any variance or deviation. The Guidelines

generally define a “departure” as the “imposition of a

sentence outside the applicable guideline range or of a

sentence that is otherwise different from the guidelines

sentence,” Guidelines § 1B1.1, comment. (n.1(E)), a defi-

nition that comfortably includes variances under Section

3553(a). And several courts have referred to Section

3553(a) variances as “departures”—including this Court,

which has used the terras “departure” and “variance”

interchangeably. As exacted, Rule 32(h) required notice

of all available deviations from the Guidelines range, and

it should be construed the same way today. Although

only Guidelines-authorized departures were permissible

when Rule 32(h) was enacted, courts may now also vary

from the Guidelines based on Section 3553(a). Variances

thus fall squarely within the plain meaning of the textual

reference to departures. Accordingly, Rule 32(h) re-

quires notice of Section 3553(a) variances.

C. That interpretation is supported by Federal Rule

of Criminal Procedure 32(i)(1)(C), which gives the par-

ties the right to comment on “matters relating to an ap-

propriate sentence.” In Burns, this Court reasoned that

this right would be virtually meaningless without notice

of sua sponte departures. 501 U.S. at 136. That reason-

ing applies with equal force to sua sponte variances.

Like Guidelines departures, Section 3553(a) variances

are “[ojbviously” matters relating to the appropriate

sentence, and, “it makes no sense to impute to Congress

an intent that a defendant have the right to comment on

the appropriateness of a sua sponte [variance] but not

the right to be notified that the court is contemplating

such a ruling.” Id. at 135-136.

D. For similar reasons, a notice requirement for

variances is essential to advance Rule 32’s purpose of

ensuring “focused, adversarial resolution of the legal

and factual issues” relevant to sentencing. Burns, 501

U.S. at 137. Notice of variances is even more necessary

to further this purpose than notice of departures, be-

cause the Section 3553(a) criteria embrace a wider array

of factors than the grounds for departure under the

Guidelines. In addition, a sentencing court can always

use a Section 3553(a) variance to impose the same sen-

tenee that the court could have imposed as a Guidelines

departure. Therefore, unless a court must provide no-

tice of otherwise unanticipated grounds for variances,

courts could bypass Guidelines departures and impose

all non-Guidelines sentences as Section 3553(a) vari-

ancees, with no notice. And, if a court imposed a Guide-

lines departure without giving notice, that error would

often be harmless. Courts frequently impose non-Guide-

_ lines sentences both on traditional departure grounds

and as Section 3553(a) variances, and a failure to give

notice of a traditional departure would be harmless if

the court would have imposed the same sentence under

Section 3553(a).

E. Construing Rule 32 to mandate notice of vari-

ances would also have the salutary effect of eliminating

the need for courts to consider whether notice would

_ otherwise be required by due process. The question

_ whether due process demands notice before a sua sponte

variance from the advisory Guidelines range is less seri-

ous than the question in Burns, which involved a depar-

ture from a mandatory Guidelines range. Nonetheless,

avoiding the issue provides further support for inter-

preting Rule 32 as mandating notice of variances.

F. None of the reasons courts have offered for limit-

ing Rule 32 to Guidelines departures is persuasive. The

fact that a Section 3553(a) variance is always possible

does not eliminate the need for notice. A notice require-

ment for variances also would not be unduly burden-

some. Requiring notice of Section 3553(a) variances is

also consistent with post-Booker sentencing, because the

Guidelines, although advisory, continue to play a central

role. And, finally, nothing in the text of Rule 32(h) limits

its coverage to departures authorized by the Guidelines

themselves.

II. Although the district court erred in imposing an

above-Guidelines sentence without giving notice that it

was contemplating a variance under Section 3553(a),

that error was harmless.

A. This Court should reject petitioner’s request that

the Court not address the harmless-error issue. The

issue is properly presented, and the Court has ad-

dressed harmlessness questions in the past. Resolving

the issue here will not be overly burdensome and will

provide important guidance to the lower courts.

B. Petitioner is not correct that the Court must de-

cide whether notice is required by due process in order

to decide the harmless-error issue. The district court’s

violation of Rule 32 was non-constitutional error, subject

to the harmless-error standard of Kotteakos v. United

States, 328 U.S. 750 (1946). That standard applies

whether or not the district court also violated due pro-

cess. Petitioner has never raised a due process claim.

And only a separate due process claim, if properly pre-

served and decided in petitioner’s favor, would be re-

viewed under the more demanding harmless-error stan-

dard of Chapman v. California, 386 U.S. 18 (1967).

C. In any event, the notice deficiency was harmless

under both the Kotteakos and Chapman standards. The

district court varied upwards to protect the public from

further crimes by petitioner. Although the court did not

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give notice that it might vary on that ground, petitioner

had notice that the likelihood that he would commit fur-

ther crimes would be a central issue at sentencing and

might support an above-Guidelines sentence. There is

no reason to believe that petitioner’s sentencing presen-

tation would have been materially different if he had

received notice that his future dangerousness might also

be considered as the basis for a variance.

D. For the first time in this Court, petitioner claims

that, with more specific notice, he would have presented

expert testimony that his criminal conduct was the prod-

uct of a delusional disorder that could be successfully

treated. That evidence would not have affected peti-

tioner’s sentence. Petitioner made essentially the same

argument at sentencing, although he chose not to pres-

ent expert testimony, which petitioner concedes was

“available.” Pet. Br. 32-33. Moreover, the district court

had already rejected the defense expert’s diagnosis that

petitioner was delusional. Finally, the evidence at sen-

tencing showed that petitioner had repeatedly refused

psychiatric medication and was “not motivated to en-

gage in any treatment.” Butner FMC Report 14.

ARGUMENT

I. RULE 32 REQUIRES A DISTRICT COURT TO PROVIDE

NOTICE BEFORE VARYING UNDER 18 U.S.C. 3553(a)

FROM THE SENTENCING GUIDELINES RANGE BASED

ON A GROUND NOT IDENTIFIED IN THE PRESEN-

TENCE REPORT OR THE PARTIES’ SUBMISSIONS

Federal Rule of Criminal Procedure 32 requires a

district court to provide notice before sentencing outside

the range recommended by the Sentencing Guidelines

on a ground not previously identified by the presentence

report or the parties. That requirement applies to any

deviation from the Guidelines range, whether character-

ized as a Guidelines departure or a variance under

18 U.S.C. 3553(a) (2000 & Supp. V 2005). The district

court therefore erred when it sentenced petitioner above

the Guidelines range based on Section 3553(a) without

first providing notice.

A. Rule 32(h), Which Codifies The Holding Of Burns, Re-

quires Notice Before A Sua Sponte “Departure” From

The Applicable Guidelines Range

Rule 32 establishes formal sentencing procedures to

ensure “focused, adversarial resolution” of the issues

central to selecting an appropriate sentence. Burns v.

United States, 501 U.S. 129, 137 (1991). Those proce-

dures generally require preparation of a presentence

report (PSR) that sets out the principal legal and factual

issues bearing on the sentence. Fed. R. Crim. P. 32(c).

The PSR must include the sentencing range recom-

mended by the Guidelines and “identify any basis for

departing from” that range. Fed. R. Crim. P. 32(d). The

parties must receive copies of the PSR before the sen-

tencing hearing and may file objections to the PSR’s

factual findings and sentencing recommendations. Fed.

R. Crim. P. 32(e) and ().

In Burns, this Court construed an earlier version of

Rule 32 to require the sentencing court to give the par-

ties notice before departing from the Guidelines range

on a ground that had not been identified by the PSR or

the parties’ prehearing submissions. 501 U.S. at 138-

139. The Court held that notice was implicitly required

by Rule 32’s mandate that the parties have “an opportu-

nity to comment upon the [PSR] and on other matters

relating to the appropriate sentence.” /d. at 135 (quot-

ing Fed. R. Crim. P. 32(a)(1) (1991)). The Court rea-

J TT

soned that, if notice of swa sponte departures were not

required, the right to comment on those departures,

P which are “[o}bviously” matters relating to an appropri-

ate sentence, would be “meaningless.” Id. at 135-136.

The Court also reasoned that notice is critical to Rule

_ $2’s “purpose of promoting focused, adversarial resolu-

tion of the legal and factual issues” relevant to sentenc-

ing. Id. at 137. Additionally, the Court relied on the

principle of constitutional avoidance, explaining that, if

it “read Rule 32 to dispense with notice, [the Court]

would then have to confront the serious question

whether notice in this setting is mandated by the Due

Process Clause.” Id. at 138.

. In 2002, Rule 32 was amended to “reflect{]” the deci-

Sion in Burns. Fed. R. Crim. P. 32 advisory committee’s

notes (2002 Amends.). The amendment retained (with

non-substantive revisions) the language on which the

Court relied in Burns and moved that language to a new

_ subsection, Fed. R. Crim. P. 32(i)(1)(C). The amend-

ment also added Rule 32(h), entitled “Notice of Possible

Departure from Sentencing Guidelines.” Rule 32(h)

. states that, Iblefore the court may depart from the ap-

_ plicable sentencing range on a ground not identified for

departure either in the [PSR] 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

contemplating a departure.” Fed. R. Crim. P. 32(h).

When Rule 32(h) was enacted, the Guidelines were

viewed as mandatory. District courts could deviate from

the Guidelines sentencing range only under limited cir-

cumstances described in 18 U.S.C. 3553(b) (2000 &

Supp. V 2005).“ The Guidelines contain various provi-

sions detailing when departures are authorized in accor-

dance with that limitation. See Guidelines § 4A1.3, Ch.

5, Pts. H and K (2004). Subsequently, however, this

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

(2005), which rendered the Guidelines advisory. Under

Booker, although the Guidelines continue to play an im-

portant role in sentencing, district courts may deviate

from the Guidelines range not only when authorized by

the Guidelines themselves but also when warranted by

the criteria in Section 3553(a). Booker, 543 U.S. at 245.

B. The Term “Departure” Encompasses All Deviations

From The Guidelines Range, Whether Authorized By

The Guidelines Or By Section 3553(a)

After Booker, Rule 32’s requirement that a district

court provide notice before a sua sponte “departure”

from the Guidelines range is best construed to encom-

pass a deviation from that range authorized by Section

3553(a) as well as a deviation authorized by the Guide-

lines themselves.

1. The words “depart” and “departure” in Rule 32(h)

are best read to encompass all deviations from the

Guidelines range, whether authorized by the Guidelines

themselves or by Section 3553(a). The ordinary meaning

of “depart” is to “deviate” or to “vary, as from a regular

course.” Webdster’s Third New International Dictionary

* Section 3553(b)(1) states that the sentencing court “shall” impose

a sentence within the Guidelines range “unless the court finds that

there exists an aggravating or mitigating circumstance of a kind, or to

a degree, not adequately taken into consideration by the Sentencing

Commission in formulating the Guidelines that should result in a

sentence different from that described.” 18 U.S.C. 3553(b\(1) (Supp. V

2005).

of the English Language 604 (1993); The American Her-

itage Dictionary of the English Language 501 (3d ed.

1992); see Webster’s New International Dictionary 700

(2d ed. 1958) (“deviate”). A “departure” is a “divergence

or deviation, as from an established rule, plan, or proce-

dure.” Ibid.; see Random House Dictionary of the Eng-

lish Language 534 (2d ed. 1987). Accordingly, under the

plain meaning of the terms “depart” and “departure” in

Rule 32(h), a court must give notice whenever it deviates

on its own initiative from the applicable Guidelines

range, regardless of whether the deviation is authorized

by the Guidelines or the broader Section 3553(a) crite-

ria. United States v. Cousins, 469 F.3d 572, 580 (6th

Cir. 2006); United States v. Evans-Martinez, 448 F.3d

1163, 1167 (9th Cir. 2006).

2. The Guidelines support that understanding of the

rule. The Guidelines did not contain a definition of “de-

parture” when Rule 32(h) was enacted. But the Sen-

tencing Commission added its own definition to the

Guidelines shortly thereafter. See Guidelines App. C,

Amend. 651, Reason for Amend. (Oct. 27, 2003). Under

that definition, “departure” generally means “imposition

of a sentence outside the applicable guideline range or

of a sentence that is otherwise different from the guide-

line sentence.” Guidelines § 1B1.1, comment. (n.1(E)).

A non-Guidelines sentence based on the Section 3553(a)

factors is clearly a “sentence outside the applicable

guideline range” or “a sentence that is otherwise differ-

ent from the guideline sentence.” A deviation from the

Guidelines under Section 3553(a) thus fits comfortably

within the Guidelines definition of departure.“

* The Guidelines provide a more specific definition of “departure” for

purposes of Guidelines § 4A1.3. For that provision, departure means

Although the Guidelines define “departure” broadly,

they authorize only certain types of departures—those

based on “an aggravating or mitigating circumstance

* * * of a kind, or to a degree, not adequately taken

into consideration by the Sentencing Commission in for-

mulating the guidelines,” Guidelines § 5K2.0(a)(1); those

based on the defendant’s provision of “substantial assis-

tance” to the government, Guidelines § 5K1.1; and those

based on a conclusion that “the defendant’s criminal

history category substantially under-represents the se-

riousness of the defendant’s criminal history or the like-

lihood that the defendant will commit other crimes,”

Guidelines § 4A1.3(a)(1). When Rule 32(h) was enacted,

the Guidelines were mandatory, and those categories of

departures were therefore the only ones that were le-

gally authorized. Likewise, they were the only depar-

tures for which Rule 32(h) would have required notice.

But that does not mean that Rule 32(h) should be con-

strued as limited to those departures now that the

Guidelines are advisory and courts have additional bases

for sentencing outside the Guidelines range. Cf. Riegel

v. Medtronic, Inc., 128 S. Ct. 999, 1011-1012 (2008)

(Stevens, J., concurring) (finding express preemption in

circumstances not envisioned by drafters of preempting

provision).

On the contrary, because Rule 32(h) required notice

of all sentences outside the presumptively applicable

Guidelines range when it was enacted, this Court should

give it a comparably comprehensive construction today.

“assignment of a criminal history category other than the otherwise

applicable criminal history category, in order to effect a sentence

outside the applicable guideline range.” Guidelines § 1B1.1, comment.

(n.1(E)). That definition is, by its terms, not relevant to non-Guidelines

sentences under Section 3553(a).

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Rule 32(h) should be read to require notice of any sen-

tence outside the Guidelines range, whether resting on

a Guidelines departure factor or the broader set of con-

siderations embraced by Section 3553(a). It may be

that, in some cases, like this one, the factors on which

the district court varies will be disputed by the parties

even absent notice of the potential variance, but that is

no reason not to give Rule 32(h) its full scope. That was

true in some cases before Booker, and, even after

Booker, courts may deviate based on factors very differ-

ent from those on which the parties focus.

3. Although the term “departure” in Rule 32(h) is

broad enough to encompass non-Guidelines sentences

based on Section 3553(a), the government has generally

used the term “variance” to refer to those sentences,

and it has reserved the term “departure” for deviations

authorized by the Guidelines themselves. Several courts

of appeals have also adopted that terminology. See, e. g.,

United States v. Vampire Nation, 451 F.3d 189, 195 n.2

(3d Cir.), cert. denied, 127 S. Ct. 424 (2006) (citing

United States v. Sitting Bear, 436 F.3d 929, 932-933 (8th

Cir. 2006)). That terminology, however, developed only

as a convenient way to differentiate the two processes

for sentencing outside the Guidelines range. “Variance”

is not defined in any statute or rule. The government

and the courts could just as easily have called Section

3553(a) variances “non-Guidelines departures.” In fact,

several courts of appeals have referred to them that

way. See, e.g., Cousins, 469 F.3d at 577; United States

v. Calzada-Maravillas, 443 F.3d 1301, 1304 (10th Cir.

2006).

In addition, this Court has frequently used the term

“departure” to refer to any sentence outside the Guide-

lines range, including a variance on Section 3553(a)

grounds. See, e. g., Rita v. United States, 127 S. Ct.

2456, 2464 (2007) (noting that distriet eourts may de-

part (either pursuant to the Guidelines or, since Booker,

by imposing a non-Guidelines sentence)”); Gall v.

United States, 128 S. Ct. 586, 594, 595 (2007) (repeatedly

using “departure” to refer to a Section 3553(a) variance).

Likewise, the Court has often used the words “depar-

ture,” “variance,” and “deviation” interchangeably to

refer to a sentence outside the Guidelines range imposed

under Section 3553(a). See, e.g., id. at 594-595 (“In re-

viewing the reasonableness of a sentence outside the

Guidelines range, appellate courts may therefore take

the degree of variance into account and consider the

extent of a deviation from the Guidelines. We reject,

however, an appellate rule that requires ‘extraordinary’

circumstances to justify a sentence outside the Guide-

lines range. We also reject the use of a rigid mathemati-

cal formula that uses the percentage of a departure as

the standard for determining the strength of the justifi-

cations required for a specific sentence.”) (emphases

added); id. at 597 (“If [the district judge] decides that an

outside-Guidelines sentence is warranted, he must con-

sider the extent of the deviation and ensure that the

justification is sufficiently compelling to support the

degree of the variance. We find it uncontroversial that

a major departure should be supported by a more signif-

icant justification than a minor one.”) (emphases added).

Thus, Section 3553(a) variances are readily understood

to be “departure[s]}” covered by the notice requirement

of Rule 32(h).*

Interpreting the term “departure” to include Section 3553(a)

variances is also consistent with the use of that term elsewhere in Rule

32. Rule 32(d)(1)(E) provides that the PSR must “identify any basis for

departing from the applicable sentencing range.” Fed. R. Crim. P.

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;

C. A Notice Requirement Is Also Supported By Rule

32(i)(1)(C), Which Mandates That The District Court

Allow The Parties To Comment On “Matters Relating

To An Appropriate Sentence”

In Burns, this Court concluded that it had to read

Rule 32 to require notice of swa sponte departures be-

cause a contrary reading would “render{] meaning-

less the parties’ express right ‘to comment upon

. . . matters relating to the appropriate sentence, 501

U.S. at 136 (quoting Fed. R. Crim. P. 32(a)(1) (1991)).

The Court’s reasoning in Burns applies with equal force

to swa sponte variances under Section 3553(a).

Rule 32 continues to give the parties the right “to

comment on * * * matters relating to an appropriate

sentence.” Fed. R. Crim. P. 32(i)(1)(C). Like Guidelines

departures, Section 3553(a) variances are “[o]bviously”

matters relating to the appropriate sentence. Burns,

501 U.S. at 135. And “it makes no sense to impute to

Congress an intent that a defendant have the right to

comment on the appropriateness of a swa sponte depar-

ture [or variance] but not the right to be notified that

the court is contemplating such a ruling.” /d. at 135-136.

“*Th{e] right to be heard has little reality or worth un-

less one is informed’ that a decision is contemplated.”

Id. at 136 (citation omitted; brackets in original). More-

over, there is “essentially no limit on the number of po-

tential factors that may warrant” a non-Guidelines sen-

32(d1XE). It is entirely appropriate to interpret that provision as

requiring the PSR to identify grounds for departing under Section

3553(a), as well as under the Guidelines. In fact, after Booker, PSRs

frequently do just that. See, eg, United States v. Fancher, 513 F.3d

424, 425-426 (4th Cir. 2008); United States v. Korson, 243 Fed. Appx.

141, 143 (6th Cir. 2007); United States v. Hernandez-Feliz, No. 07-

10052, 2007 WL 4292110, at *1 (9th Cir. Dec. 5, 2007) .

tence under Section 3553(a). Jbid. Accordingly, “no one

is in a position to guess when or on what grounds a dis-

trict court might” choose to impose a non-Guidelines

sentence, “much less to ‘comment’ on such a possibility

in a coherent way.” Id. at 137. Requiring advance no-

tice of Section 3553(a) variances thus gives meaning to

the right to comment on the decision whether to impose

a non-Guidelines sentence. United States v. Anati, 457

F.3d 233, 236 (2d Cir. 2006).

D. Notice Of All Sua Sponte Deviations From The Guide-

lines Range Is Necessary To Achieve The Purposes Of

Rule 32

1. For similar reasons, notice of Section 3553(a) vari-

ances is essential to advance the purposes of Rule 32.

As this Court explained in Burns, Rule 32 seeks to pro-

vide “focused, adversarial resolution of the legal and

factual issues” relevant to sentencing. Burns, 501 U.S.

at 137. Rule 32(h) reflects a judgment that the parties

cannot meaningfully present evidence and argument on

sentencing outside the Guidelines range unless they

have notice of the grounds on which the district court is

contemplating that it might impose a non-Guidelines

sentence. The need for notice is also substantial for Sec-

tion 3553(a) variances. United States v. Atencio, 476

F.3d 1099, 1104 (10th Cir. 2007) (en banc).

Burns explains that, absent notice, the parties would

be forced to address “possible sud sponte departures 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.” 501

U.S. at 137. That problem is even more apt to occur if

the parties do not have notice of Section 3553(a) vari-

ances because the Section 3553(a) criteria are broader

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than the grounds for departure under the Guidelines.

Compare 18 U.S.C. 3553(a) (2000 & Supp. V 2005) with

Sentencing Guidelines § 4A1.3, Ch. 5, Pts. H and K.

Moreover, as with sud sponte Guidelines departures, “in

every case in which the parties fail to anticipate an un-

announced and uninvited” Section 3553(a) variance, “a

critical sentencing determination will go untested by the

adversarial process contemplated by Rule 32.” Burns,

501 U.S. at 137.

To be sure, that problem is not evident in this case

from an ex post perspective. The ground on which the

district court varied was subject to adversarial dispute

both because it was relevant to sentencing within the

Guidelines range and because the PSR raised the possi-

bility of a Guidelines departure on a similar ground. See

pp. 41-45, infra. But there is a potential problem ex

ante in this and every case, because the parties have no

way to know which of the virtually limitless grounds for

variance the sentencing judge thinks are relevant.

In Rita, this Court recently reaffirmed the continu-

ing importance of the adversarial process in the advisory

Guidelines regime. The Court observed that, before a

district court decides that a “Guidelines sentence should

not apply”—either because a departure is authorized by

“the Guidelines themselves” or because the Guidelines

sentence “fails properly to reflect § 3553(a) factors“

the court must conduct “the thorough adversarial test-

ing contemplated by federal sentencing procedure.”

Rita, 127 S. Ct. at 2465. In making that point, the Court

cited Rule 32(h) and (i)(1)(C), as well as Burns, for the

“importance of notice and meaningful opportunity to be

heard.” /bid. Rita thus confirms that the notice re-

quirement necessary for the adversarial testing of sen-

tencing issues applies to any sentence outside the Guide-

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lines range, whether achieved through a Guidelines de-

parture or a Section 3553(a) variance.

2. A notice requirement for Section 3553(a) vari-

ances is critical to prevent evisceration of Rule 32(h)’s

notice requirement for Guidelines departures. As de-

scribed above, the grounds for varying under Section

3553(a) are even broader than the justifications for de-

parting under the Sentencing Guidelines. A sentencing

court therefore can always use a Section 3553(a) vari-

ance to impose the same sentence that the court could

have imposed as a Guidelines departure. See United

States v. Smith, 474 F.3d 888, 893 (6th Cir. 2007);

United States v. Mohamed, 459 F.3d 979, 987 (9th Cir.

2006). Because a Section 2553(a) variance can always

substitute for a Guidelines departure, Rule 32(h)’s notice

requirement for Guidelines departures would be essen-

tially meaningless if Rule 32 did not also require notice

of Section 3553(a) variances.

In light of the functional overlap between variances

and Guidelines departures, district courts often rely

solely on Section 3553(a) when imposing non-Guidelines

sentences, without considering whether the Guidelines

would authorize a departure. See, e.g., United States v.

Mejia-Huerta, 480 F.3d 713, 716-719 (5th Cir. 2007),

petition for cert. pending, No. 06-1381 (filed Apr. 18,

2007); United States v. Levine, 477 F.3d 596, 606 (8th

Cir.), cert. denied, 127 S. Ct. 3023 (2007). Indeed, two

circuits have held that Guidelines departures are obso-

lete after Booker. See Mohamed, 459 F.3d at 986;

United States v. Walker, 447 F.3d 999, 1006 (7th Cir.),

cert. denied, 127 S. Ct. 314 (2006). In those circuits, dis-

trict courts routinely vary under Section 3553(a) without

addressing the possibility of a Guidelines departure.

See, e.g., United States v. Santiago, 495 F.3d 820, 823

(7th Cir. 2007); United States v. Orosco-Cortez, No.

06-50270, 2008 WL 162998, at *1 (9th Cir. Jan. 18, 2008).

If a court were free to vary under Section 3553(a) on an

unanticipated ground that paralleled a traditional depar-

ture factor without giving any notice, the parties would

face sentencing by surprise—even though notice would

have been required if the court had imposed the same

sentence as a Guidelines departure. See, e.g., Mejia-

Huerta, 480 F.3d at 723-724; Levine, 477 F.3d at 606.°

In many other cases, district courts fail to give notice

before imposing a non-Guidelines sentence and do not

specify whether the deviation is based on a Guidelines

departure or a Section 3553(a) variance. For example,

in fiscal year 2007, district courts imposed approxi-

mately 8535 sentences outside the applicable Guidelines

range on grounds other than government-sponsored

downward departures. In 8.3% of those cases, the

courts failed to specify whether they were relying on a

Guidelines departure or a Section 3553(a) variance. See

United States Sentencing Comm'n, Preliminary Quar-

terly Data Report, Fourth Quarter Release, Prelimi-

nary Fiscal Year 2007 Data, Table 1, at 1, http://www.

ussc. gov/se cases / Quarter Report 4th_07.pdf (visited

Mar. 19, 2008) (2007 Sentencing Data). If there were no

Indeed, because it has declared Guidelines departures “obsolete”

after Booker, the Seventh Circuit has held that Rule 32(h) no longer

“has any continuing application.” Walker, 447 F. 3d at 1006 (emphasis

added). The position that traditional Guidelines departures are

“obsolete” is incorrect. Section 3553(a) requires courts to consider “any

pertinent policy statement * * * issued by the Sentencing Commis-

sion,” 18 U.S.C. 3553(a)(5) (Supp. V 2005), and this Court has recog-

nized that the parties may “argue within the Guidelines framework, for

a departure from the applicable Guidelines range.” Rita, 127 S. Ct. at

2461; see id. at 2464, 2465.

notice requirement for variances, many of those sen-

tences would be likely upheld as variances on appellate

review, despite the absence of advance notice of the de-

viation from the Guidelines range. Cf. United States v.

Morris, 228 Fed. Appx. 906, 907-908 (11th Cir. 2007);

United States v. Moton, 226 Fed. Appx. 936, 937 (11th

Cir. 2007).

In an even larger number of cases, district courts

rely on both a Guidelines departure and a Section

3553(a) variance, as alternative grounds, to justify a

non-Guidelines sentence. See, e.g., United States v.

Coughlin, 500 F.3d 813, 819 (8th Cir. 2007); United

States v. Bradford, 461 F. Supp. 2d 904, 928-929 (N. D.

Iowa 2006), aff'd, 499 F.3d 910 (8th Cir. 2007), cert. de-

nied, No. 07-7829 (Feb. 25, 2008). For example, in fiscal

year 2007, courts relied on both grounds to justify al-

most 12% of the 8535 non-Guidelines sentences. 2007

Sentencing Data Table 1, at 1. Unless there were a no-

tice requirement for variances, a district court’s failure

to give notice before imposing a Guidelines departure

would be harmless error any time that the court relied

on Section 3553(a) as an alternative ground.

Even more troubling, if a district court recognized

that it could not lawfully depart under the Guidelines

because it had failed to give notice, it could still impose

the same sentence under Section 3553(a). Absent a no-

tice requirement for variances, the court would not be

committing error at all. Cf. United States v. Flanders,

491 F.3d 1197, 1220-1221 (10th Cir. 2007). Thus, unless

Rule 32 is construed to require notice of Section 3553(a)

variances, Rule 32(h)’s requirement that courts provide

notice of Guidelines departures will have little, if any,

continuing force.

E. Construing Rule 32 To Mandate Notice Of Variances

Would Enable Courts To Avoid Considering Whether

Notice Is Required By Due Process

Interpreting Rule 32 to mandate notice of variances

would also eliminate the need for courts to de- de

whether notice would otherwise be required by the Due

Process Clause. In Burns, this Court held that there

was a “serious” question whether due process required

notice before a swa sponte departure from the manda-

tory Guidelines range. 501 U.S. at 138. The Court

therefore concluded that the principle of constitutional

avoidance required it to construe Rule 32 as mandating

notice. /bid. Although the question whether due pro-

cess demands notice before a sua sponte variance from

the advisory Guidelines range is substantially less seri-

ous than the due process issue in Burns, interpreting

Rule 32 as requiring notice of variances obviates any

need for the courts to address the constitutional issue.

In the mandatory Guidelines regime that prevailed

when the Court decided Burns, a defendant had a legal

right to a sentence within the Guidelines range unless

there were grounds described in Section 3553(b) that

justified a departure. There was therefore a substantial

basis for believing that notice of a possible departure

was essential to protect that legal right against errone-

ous deprivation. See Burns, 501 U.S. at 138; id. at 146-

156 (Souter, J., dissenting) (considering but rejecting

that argument). After Booker, the defendant no longer

has a legal right to a Guidelines sentence absent a valid

departure ground. Instead, the defendant may only

challenge the reasonableness of his sentence on appeal

under a deferential abuse-of-discretion standard. See

Booker, 543 U.S. at 260-261; Gall, 128 S. Ct. at 597. No-

tice that the court is contemplating a non-Guidelines

’

sentence will help achieve the most appropriate sen-

tence, especially in cases in which the grounds for the

variance differ from the considerations governing the

applicable within-range sentence. sut such notice is not

essential to ensure a reasonable sentence, let alone re-

quired by due process. See United States v. Ausburn,

502 F.3d 313, 324-327 (3d Cir. 2007), petition for cert.

pending, No. 07-9534 (filed Feb. 19, 2008); Greenholtz v.

Inmates of the Neb. Penal & Corr. Complex, 442 U.S. 1,

14 n.6 (1979) (due process does not require parole board

to give notice of the factors it will consider in making a

discretionary decision whether to grant parole).

Nonetheless, reading Rule 32 to require notice of

variances best comports with its language and purposes.

And giving the rule that meaning also eliminates any

need to address the due process issue, which at least one

court has already had to confront. See Ausburn, 502

F.3d at 324-327. That salutary result further supports

construing Rule 32 to require notice of all deviations

from the Guidelines range, including Section 3553(a)

variances.

F. The Arguments For Limiting Rule 32 To Guidelines De-

partures Are Not Persuasive

The courts of appeals that have read Rule 32 as re-

quiring notice only of Guidelines departures have of-

fered essentially four reasons in support of their inter-

pretation. None of those reasons is persuasive.

J. The fact that a Section 3553(a) variance is always

possible does not eliminate the need for notice

Courts that have refused to read Rule 32 as covering

Section 3553(a) variances have primarily reasoned that

the parties are “inherently on notice” of the Section

3553(a) factors and know that the district court will con-

’

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—_—

sider those factors in sentencing. J. A. 399-400. Those

courts have concluded that there is therefore no danger

of “unfair surprise or inability to present informed com-

ment,” the concerns that motivated this Court’s decision

in Burns. J. A. 400; e. g., Mejia-Huerta, 480 F.3d at 722.

That reasoning is flawed.

When Burns was decided, the parties were “equally

aware of the specified circumstances for departure un-

der the Guidelines.” Atencio, 476 F.3d at 1104. None-

theless, this Court held that this generalized notice was

insufficient to satisfy Rule 32’s purpose of promoting the

“focused, adversarial resolution” of the issues relevant

to sentencing because “no one is in a position to guess

when or on what grounds a district court might depart.”

Burns, 501 U.S. at 187. The Court’s reasoning applies

just as forcefully to Section 3553(a) variances. Indeed,

the potential for surprise is even more pronounced for

variances, because courts have much greater freedom to

vary under Section 3553(a) than to depart under the

Guidelines. Section 3553(a) permits a court to vary

based on policy considerations and factors that the

Guidelines may have put off-limits. See Kimbrough v.

United States, 128 S. Ct. 558 (2007). Accordingly, par-

ties have, if anything, less ability to anticipate the basis

for a sua sponte variance than a traditional departure.

See United States v. Davenport, 445 F.3d 366, 371 (4th

Cir. 2006). Although there may be cases, like this one,

where the ultimate ground for a variance is little differ-

ent from the disputed issues relevant to the appropriate

sentence within the Guidelines range, that potential does

little to help the parties ex ante. The greater number of

potential grounds for variances puts a premium on no-

tice of the factors that the sentencing judge believes to

be relevant.

2. Requiring notice of Section 3553(a) variances is not

unduly burdensome

Courts rejecting a notice requirement for variances

have also expressed concern that requiring notice would

be “unworkable” because a district court often will not

know until the sentencing hearing itself that the court

believes a non-Guidelines sentence is appropriate. Vam-

pire Nation, 451 F.3d at 197; United States v. Vega-

Santiago, No. 06-1558, 2008 WL 451813, at“ 3 (Ist Cir.

Feb. 21, 2008) (en banc). That concern is unfounded.

The notice requirement for sua sponte Section

3553(a) variances will apply in relatively few cases. Rule

32(d)(1)(E) requires the PSR to identify any ground for

imposing a non-Guidelines sentence. See note 4, supra.

The United States Attorneys Offices inform us that, in

the vast majority of cases in which a district court im-

poses a sentence outside the Guidelines range, the

grounds for the variance have previously been identified

by the PSR or the parties. Moreover, district courts will

not be unduly burdened by providing notice in those

rare cases in which the possible variance has not already

been identified. Judges routinely review the PSR and

other materials in advance of the sentencing hearing and

“will already have a developed view of what the appro-

priate sentence is, including its length.” Vega-Santiago,

2008 WL 451813, at *11 (Lipez, J., dissenting). Al-

though the judge’s views may be altered by the evidence

and argument at the hearing, the “judge will almost al-

ways have considered in advance of the hearing whether

an upward or downward variance is appropriate.” /bid.

And, of course, if the hearing causes the judge to believe

that a previously unacknowledged issue might warrant

a sentence outside the Guidelines range, that is precisely

the situation when notice is critical.

Rule 32 does not impose a rigid requirement that

notice be provided before the sentencing hearing.

Burns “left open the possibility that the notice require-

ment might be met simply by notice at the hearing” it-

self. United States v. Patrick, 988 F.2d 641, 646 n.7 (6th

Cir.), cert. denied, 510 U.S. 845 (1993). Accordingly,

Rule 32 requires only that the notice be “reasonable.”

Fed. R. Crim. P. 32(h). Although some courts have con-

cluded that prehearing notice is always required, see,

e. g., Calzada-Maravillas, 443 F. 3d at 1304, that conclu-

sion is not correct. Whether the sentencing court has

provided “reasonable” notice depends on whether the

notice allows the parties to comment meaningfully on

the appropriateness of the departure or variance. See

United States v. Meeker, 411 F.3d 736, 745 (6th Cir.

2005). The answer to that inquiry is necessarily

“context-specific,” id. at 744, and “will vary from case to

case,” United States v. Reynoso, 254 F.3d 467, 474 (3d

Cir. 2001).

In many cases, notice provided at the sentencing

hearing will be “reasonable,” especially if other, related

sentencing issues have been sufficiently developed. See,

e. g., United States v. Hildebrand, 152 F.3d 756, 766 (8th

Cir.) (rejecting claim that court could not base upward

departure in part on defendant’s lack of remorse in his

allocution when court had given notice that it was con-

templating departure on other grounds), cert. denied,

525 U.S. 1033 (1998)). In other cases, a short recess of

the hearing will be sufficient to provide the necessary

notice. See United States v. Nappi, 243 F.3d 758, 765

(3d Cir. 2001). Although more time may be needed in

some cases—particularly where the contemplated basis

for variance brings into play factual issues that have not

previously been ventilated—the importance of fully air-

ing the issues critical to sentencing justifies continuing

the hearings in those cases.

3. Requiring notice of Section 3553(a) variances is con-

sistent with the role of the Guidelines in post-Booker

sentencing

Courts rejecting a notice requirement for variances

have also reasoned that it would improperly “re-elevate

the Guidelines to a position [they] no longer enjoy[].”

Mejia-Huerta, 480 F.3d at 723; e. g., Vampire Nation,

451 F.3d at 196. That reasoning misunderstands both

the role of the Guidelines in post-Booker sentencing and

the impact that a notice requirement would have on a

district court’s sentencing decision.

Even after Booker, the Guidelines play a critical role

in sentencing. As this Court has explained, “the Guide-

lines should be the starting point and the initial bench-

mark” for all sentencing decisions. Gall, 128 S. Ct. at

596. “Where the judge imposes a sentence outside the

Guidelines, the judge will explain why he has done so.”

Rita, 127 S. Ct. at 2468; see 18 U.S.C. 3553(e) (2) (Supp.

V 2005) (requiring district court to state “the specific

reason” for a non-Guidelines sentence). The court “must

give serious consideration to the extent of any departure

from the Guidelines,” Gall, 128 S. Ct. at 594, and “en-

sure that the justification is sufficiently compelling to

support the degree of the variance,” id. at 597. On re-

view, the court of appeals may apply a presumption of

reasonableness to a sentence “that reflects a proper ap-

plication of the Sentencing Guidelines.” Rita, 127 S. Ct.

at 2462. When reviewing a non-Guidelines sentence,

“appellate courts may * * * take the degree of vari-

ance into account and consider the extent of a deviation

from the Guidelines.” Gall, 128 S. Ct. at 595.

The continuing importance of the Guidelines is evi-

denced by the fact that, in fiscal year 2007, 82% of all

sentences fell within the Guidelines range (excluding

government-sponsored downward departures). 2007

Sentencing Data Table 1, at 1. Because the Guidelines

remain central to the sentencing process, it remains en-

tirely appropriate to require that the district court give

the parties notice before imposing a non-Guidelines sen-

tence based on grounds not previously identified. See

Anati, 457 F. 3d at 237.

Requiring notice will not cause district courts to im-

pose within-Guidelines sentences when they otherwise

would have varied from the Guidelines range. Before

deciding that a variance is warranted, a judge will have

carefully considered the Guidelines range and decided

that “specific reasons” justify a non-Guidelines sentence.

18 U.S.C. 3553(c)(2) (Supp. V 2005). It is “inconceiv-

able” that a judge who has reached that conclusion

“would suppress that independent judgment” to avoid

“(tlhe modest burden of preparing a brief notice or, in

the rare case, continuing an already convened sentenc-

ing hearing to a later date.” Vega-Santiago, 2008 WL

451813, at *12 (Lipez, J., dissenting).

4. Rule 32(h)’s reference to “departure” is not limited to

departures authorized by the Guidelines

Courts that have read Rule 32 as requiring notice of

only Guidelines departures have also mistakenly relied

on the “plain language” of Rule 32(h), noting that it

“limits its application to departures.” Mejia-Huerta,

480 F.3d at 722; see Walker, 447 F.3d at 1005. Some

courts have assumed without analysis that a Section

3553(a) variance does not qualify as a “departure.” See,

e.g., Mejia-Huerta, 480 F.3d at 722. As explained above,

that assumption is unfounded. The ordinary meaning of

“departure” is broad enough to include any deviation

from the applicable Guidelines range, including a Sec-

tion 3553(a) variance. Several courts have used the term

“departure” to include variances, and this Court has

used the terms “departure” and “variance” interchange-

ably. See pp. 21-22, supra.

The First Circuit in Vega-Santiago cited the Guide-

lines definition of “departure” in support of its holding

that Rule 32(h) does not apply to Section 3553(a) vari-

ances. 2008 WL 451813, at *1. But the court did not

quote the Guidelines language or offer any explanation

of why the Guidelines definition does not encompass

Section 3553(a) variances. In fact, as described above,

the Guidelines define “departure” as any “sentence out-

side the applicable guideline range,” Guidelines § 1B1.1,

comment. (n.1(E)), an expansive definition that includes

Section 3553(a) variances.

The term “departure” is also used in various statu-

tory provisions that were enacted after Rule 32(h).

See 18 U.S.C. 3553(b)(2), 3742(f)(2), (g)(2)(B) and ),

5037(c)(1)(b), (2 (A)(i) and (B)(ii) (Supp. V 2005). If

those provisions were construed to encompass only

Guidelines departures, they could not be reconciled with

Booker and would have to be severed to avoid Sixth

Amendment violations. See, e.g., 18 U.S.C. 3742(g)(2)

(Supp. V 2005) (stating that, on certain remands for

resentencing, “(t]he court shall not impose a sentence

outside the applicable guidelines range except upon a

ground that-(A) was specifically and affirmatively in-

cluded in the written statement of reasons required by

section 3553(a) in connection with the previous sentenc-

ing of the defendant prior to the appeal; and (B) was

held by the court of appeals, in remanding the case, to

be a permissible ground of departure”). It may be, how-

ever, that one or more of the provisions can be read, like

Rule 32, to encompass all non-Guidelines sentences, in-

cluding variances. Whether any of the statutory provi-

sions should be construed that way—and whether they

would be consistent with Booker if they were so con-

strued—depends on the particular context of each provi-

sion.

The ultimate interpretation of the statutory provi-

sions will not, however, alter the correct interpretation

of Rule 32. Nothing in the context of Rule 32 restricts

its coverage to Guidelines departures; its language

readily covers all non-Guidelines sentences; and that is

the only construction that advances the rule’s purposes.

Accordingly, whatever “departure” means in the various

statutory provisions, in Rule 32 the term includes all

deviations from the Guidelines range, whether autho-

rized by the Guidelines themselves or Section 3553(a).

II. THE DISTRICT COURT’S FAILURE TO GIVE NOTICE

BEFORE VARYING FROM THE GUIDELINES RANGE

WAS HARMLESS ERROR

Although the district court erred by imposing an

above-Guidelines sentence without giving notice that it

was contemplating a variance under Section 3553(a), the

error was harmless because it did not affect the outcome

of the sentencing proceeding. The PSR had raised the

possibility of a Guidelines departure on essentially the

same grounds as the variance—the likelihood that peti-

tioner would commit future crimes. Moreover, that is-

sue was the central focus of the sentencing hearing, and

the difference between the top of the applicable range

and the sentence petitioner received was only nine

months. Petitioner therefore had every incentive and

opportunity to present evidence and argument about his

future dangerousness. And the additional evidence that

he now claims he would have presented would not have

affected his sentence.

A. This Court Should Decide The Harmless Error Issue

Petitioner requests (Pet. Br. 29-31) that the Court

decline to address whether the notice deficiency was

harmless. The Court should reject that request.

As the prevailing party below, the government is

entitled to defend the judgment on any ground sup-

ported by the record. Bennett v. Spear, 520 U.S. 154,

166-167 (1997). The harmless-error issue was fully

briefed and argued below, see Gov't C. A. Br. 17-23; Pet.

C.A. Reply 1-5; Gov’t Rule 28(j) Letter (Mar. 22, 2006),

and raised in the government’s Brief in Opposition to

the petition for a writ of certiorari, Br. in Opp. 13. The

issue is therefore properly before this Court. Although

the Court is not required to address the issue, the Court

“plainly hals] the authority” to do so, and it has resolved

harmlessness questions on numerous occasions. United

States v. Lane, 474 U.S. 438, 450 (1986) (quoting United

States v. Hastings, 461 U.S. 499, 510 (1983) (citing cas-

es)). The Court should do the same here.

The parties have fully briefed the issue, the record is

well developed but small, and the issue is contained.

Resolving the issue therefore would not be overly bur-

densome. At the same time, the Court’s resolution of

the issue would provide vital guidance to the lower

courts. Those courts are likely to be confronted with a

significant number of cases presenting harmless-error

—

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questions because half the circuits have erroneously

read Rule 32 as limited to Guidelines departures.

B. Kotteakos Governs The Harmlessness Inquiry

Petitioner erroneously contends (Pet. Br. 30-31) that,

before the Court can decide the harmless-error issue,

the Court must decide whether notice of the variance in

this case was required by the Due Process Clause. That

contention is based on the erroneous assumption that

resolution of the due process issue is necessary to deter-

mine which harmless-error standard applies to the dis-

trict court’s violation of Rule 32. Contrary to that as-

sumption, the non-constitutional harmless-error stan-

dard of Kotteakos v. United States, 328 U.S. 750 (1946),

applies to the Rule 32 violation, regardless of whether

the lack of notice may also have violated due process.

Constitutional errors are reviewed for harmlessness

under the standard in Chapman v. California, 386 U.S.

18, 24 (1967), which requires reversal unless the error is

harmless beyond a reasonable doubt. For non-constitu-

tional errors, however, reversal is required only if it is

“highly probable” that the error had a “substantial and

injurious effect or influence” in determining the outcome

of the proceeding. Kotteakos, 328 U.S. at 776. The

Kotteakos standard applies to violations of the Federal

Rules of Criminal Procedure, including Rule 32. See,

e.g., Lane, 474 U.S. at 449 (applying Kotteakos to a viola-

tion of Fed. R. Crim. P. 8).

That conclusion is not affected by whether the notice

deficiency was also a violation of due process. Petitioner

has never, even in his briefs in this Court, raised a due

process claim. Instead, he has consistently claimed only

a violation of Rule 32 and the interpretation of that rule

adopted in Burns, which declined to decide whether no-

tice is required by due process, see 501 U.S. at 138. See

J.A. 377; Pet. C.A. Br. 15-18; Pet. C.A. Reply Br. 1-4;

Pet. i, 5-10; Pet. Br. 24-25. Only a separate due process

claim, if properly preserved and decided in petitioner’s

favor, would be reviewed under the Chapman harmless-

error standard. See United States v. Ramirez, 479 F.3d

1229, 1246-1247 (10th Cir. 2007) (applying Kotteakos

standard to admission of evidence in violation of hearsay

rules because defendant did not also object based on

alleged Confrontation Clause violation), cert. denied,

128 S. Ct. 1074 (2008); accord, e.g., United States v.

Dukagjini, 326 F.3d 45, 59-60 (2d Cir. 2003), cert. de-

nied, 541 U.S. 1042 (2004).

Petitioner’s theory—that, in order to ascertain the

harmlessness of any violation of a rule or statute that

has potential constitutional implications, courts must

resolve unpreserved constitutional claims—cannot be

correct. That approach would seriously undermine the

doctrine of constitutional avoidance that this Court ap-

plied in Burns. There would be little point in a court’s

finding a violation of Rule 32 (or some other rule or stat-

ute) in order to avoid deciding a constitutional issue if

the court would nonetheless have to decide that very

issue in order to conduct the requisite harmless-error

review. Because petitioner has properly preserved only

a Rule 32 claim, the Kotteakos standard of harmless-

error review applies.“

In its court-of-appeals brief (at 18), the government erroneously

stated that the Chapman standard applies. The government later

corrected that misstatement and informed the court of appeals that

Kotteakos provides the applicable standard. Gov't 28(j) Letter 2.

C. The Notice Deficiency Did Not Affect Petitioner’s Pre-

sentation At Sentencing

In any case, the district court’s error in failing to

give notice of the Section 3553(a) variance was harmless

under both the Kotteakos and the Chapman standards.

Beyond a reasonable doubt, petitioner’s sentence would

not have been different if the court had complied with

Rule 32’s notice requirement.

The district court varied above the recommended

Guidelines range based on its conclusion that petitioner

would “continue, as his ex-wife testified, in [his criminal]

conduct” and, therefore, “the maximum time that he can

be incapacitated is what is best for society.” J.A. 374.

As the court of appeals explained (J.A. 398-399), the dis-

trict court thus concluded that an above-Guidelines sen-

tence was necessary “to protect the public from further

crimes” by petitioner. 18 U.S.C. 3553(a)(2)(C). Peti-

tioner did not receive notice that the court might vary

under Section 3553(a)(2)(C) based on the likelihood that

he would commit further crimes. But petitioner did

have notice that the likelihood that he would commit

further crimes would be a central issue at sentencing

and might support an above-Guidelines sentence.

The PSR, in a section entitled “Factors That May

Warrant Departure,” specifically stated that the sen-

tencing court “may consider imposing a sentence depart-

ing from the otherwise applicable guideline range” un-

der Guidelines § 4A1.3 based on “whether or not the de-

fendant’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

(emphasis added). Because petitioner knew that “the

likelihood that [he would] commit other crimes” might

be the basis for an above-Guidelines sentence, he had

every incentive to introduce evidence and argument on

that issue.’

Petitioner provides no substantial reason to believe

that he “would have done things differently” at sentenc-

ing if he had been given notice that the court was consid-

ering his future dangerousness in deciding whether to

vary rather than to depart. United States v. Himler,

355 F.3d 735, 742 (3d Cir. 2004). And the court conse-

quently would have imposed the same nine-month up-

ward variance to maximize the protection of the public

from petitioner’s proclivity to make terroristic threats

(and possibly carry them out). Accordingly, the notice

deficiency was harmless. See United States v. Tate, No.

06-6529, 2008 WL 398312, at *8 (6th Cir. Feb. 15, 2008)

(finding no plain error where PSR gave notice of a possi-

ble departure under Guidelines § 4A1.3 and district

court varied under Section 3553(a) on the same factual

basis).

Any differences between a Guidelines departure

under Section 4Al.3 and a variance under Section

3553(a)(2)(C) did not affect petitioner’s incentive or op-

portunity to address the likelihood that he would commit

further crimes. That issue was central to both potential

grounds for deviating from the Guidelines range. And

much of the factual evidence on which the district court

relied for the Section 3553(a)(2)(C) variance would have

Indeed. it could be argued that, because the PSR raised the

possibility of a departure under Guidelines § 4A1.3, there was no notice

error at all. The government has not made that argument, because a

Section 4A1.3 departure, unlike a Section 3553(a)(2)(C) variance, re-

quires a determination that the defendant's criminal history category

under-represents the likelihood that he will commit future crimes. That

difference, however, does not affect the harmless error analysis for the

reasons explained in the text following this note.

supported a Section 4A1.3 departure. The court noted

that it was persuaded by the testimony of petitioner’s

ex-wife. J.A. 374. Consistent with the facts in the PSR

(J.A. 404-406, 410), she testified about petitioner’s past

physical and mental abuse of her and her children, as

well as petitioner’s 2001 violation of a protective order.

J.A. 306-322. The district court also heard testimony,

consistent with the facts in the PSR (J.A. 405-406), that,

after his arrest, petitioner told his cellmate that he

wanted to hire someone to kill his ex-wife’s new hus-

band. J.A. 336. None of that conduct was reflected in

petitioner’s criminal history category, and it therefore

would have supported a departure under Section 4A1.3.°

Because the district court could have imposed the same

sentence as a Section 4A1.3 departure, a possibility of

which petitioner indisputably had notice, the lack of no-

tice of the variance was harmless. Cf. Mohamed, 459

F.3d at 987.

Even if there had been no possibility of a Section

4A1.3 departure, petitioner would still have had ample

incentive and opportunity to address his propensity to

commit further crimes. As petitioner could have antici-

pated, the prospect that he would continue his criminal

conduct was the central focus of the sentencing hearing.

It was the thrust of the victim-impact testimony of his

See United States v. Carter, 111 F.3d 509, 514-515 (7th Cir. 1997)

(upholding Section 4A1.3 departure based in part on victim's testimony

of defendant's past violence towards her and others); United States v.

Fayette, 895 F. 2d 1375, 1380 (11th Cir. 1990) (Section 4A1.3 departure

may be justified based on offenses committed after defendant's guilty

plea); Guidelines § 4A1.3(a)(2)A) (departure may be based on prior

sentence that did not count towards criminal history score); id. § 4A1.2

comment. (n.6) (“the criminal conduct underlying any conviction that is

not counted in the criminal history score may be considered pursuant

to § 4A1.3”).

ex-wife (J.A. 306-322), who petitioner knew would be

testifying at the hearing (J.A. 293). Nonetheless, after

she testified that she was “certain” petitioner Would]

not stop” his threatening and abusive behavior (J.A.

320), he did not object that he lacked notice that the

likelihood that he would commit further crimes would be

at issue, nor did he request a continuance to develop

more evidence or argument. Instead, he addressed his

future dangerousness by taking the stand, denying

many of his ex-wife’s allegations, and contending that he

would not threaten or harm her, her children, or her

new husband in the future. J.A. 347-364.

The likelihood that petitioner would commit future

crimes was also central to disputes over adjustments to

his sentencing Guidelines range. The PSR recom-

mended against a downward adjustment for acceptance

of responsibility because it found that petitioner “con-

tinues to engage in, or attempt to engage in, criminal

activity,” as evidenced by his attempt to solicit his

cellmate to kill his ex-wife’s new husband. J.A. 406. The

cellmate testified at the sentencing hearing (J. A. 333-

347), and petitioner responded by testifying personally

(J.A. 356) and arguing through counsel (J.A. 367) that

the cellmate was lying. The district court denied the

adjustment because it concluded that the cellmate had

testified truthfully and that petitioner “still intends to

threaten and to terrorize {his ex-wife] by whatever

means he can.” J.A. 372. The likelihood that petitioner

would commit additional crimes was also central to the

dispute over an upward adjustment based on his intent

to carry out the threats in his e-mails. Arguing against

the adjustment, defense counsel contended that peti-

tioner “brags, he boasts, and he talks a lot,” but he had

no actual intent to harm his ex-wife or others. J.A. 366.

In finding the enhancement applicable, the district court

concluded that petitioner “did in fact intend and does

have a current intent, if he is able to, to carry out these

threats.” J.A. 371.

Because the likelihood that petitioner would commit

future crimes was already central to the sentencing

hearing, it is clear that petitioner’s presentation at the

hearing would not have been materially different if he

had received notice that his future dangerousness would

also be considered as grounds for a variance. That is

especially true because there is only a nine month differ-

ence between the top of the Guidelines range and the

variant sentence imposed by the district court. The lack

of notice was therefore harmless. See United States v.

Milton, 147 F.3d 414, 421 (5th Cir. 1998) (no plain error

where defendant had notice that issue on which court

based departure would be central to sentencing).

D. The Evidence That Petitioner Now Claims He Would

Have Presented Would Not Have Affected His Sentence

Until petitioner filed his merits brief in this Court, he

never identified any evidence or argument that he would

have made if he had received notice that the district

court was considering a variance. Petitioner now claims

that he would have presented testimony by Dr. Bennett,

the defense expert who testified at his competency hear-

ing, that his threats were “fueled by his mental illness,”

that his symptoms “could be successfully treated

through antipsychotic medications and psychotherapy,”

and that incarceration was “likely to increase his delu-

sional ideations” and alternative forms of supervision

would be preferable. Pet. Br. 32. That evidence would

not have affected the district court’s sentencing decision

and therefore does not undermine the conclusion that

the notice deficiency was harmless.

Petitioner actually presented at sentencing essen-

tially the same argument that he now contends he failed

to present because of the lack of notice. Defense counsel

argued to the court that petitioner is “struggling with

mental illness. He’s going to get treatment, he’s going

to do right, he’s going to be with us no matter what we

do. In three or four years, one or two years, he’s going

to be on the street. And I think at this point we all need

to get together and figure out what will satisfy all our

interests; and that’s for him to get the help he needs and

to get on with his life.” J.A. 368. If petitioner thought

testimony from Dr. Bennett supporting that argument

would be useful, he had every incentive and opportunity

to offer it. Petitioner acknowledges that Dr. Bennett’s

testimony was “available.” Pet. Br. 32-33. Defense

counsel could have, but did not, seek to introduce that

testimony or the report that Dr. Bennett had prepared

for the competency hearing. Instead, counsel urged the

court to consider a psychiatric report that had been pre-

pared by the Bureau of Prisons shortly before the sen-

tencing hearing, which stated that petitioner had re-

fused psychiatric treatment. J.A. 365; Butner FMC Re-

port 11.

In any event, the district court had already received

Dr. Bennett’s report. J.A.2. The report addressed the

issues that petitioner suggests Dr. Bennett would have

raised at sentencing. Bennett Report 5. Contrary to

petitioner’s description of Dr. Bennett’s likely testi-

mony, however, his report does not state that peti-

tioner’s condition can be “successfully treated” but

states only that medications “may well improve [peti-

tioner's] thinking.” /bid. Cumulative testimony about

that theoretical possibility would not have altered the

court’s conclusions about petitioner’s future dangerous-

ness.

That is particularly clear because the district court

had already rejected Dr. Bennett’s diagnosis that peti-

tioner suffers from a delusional disorder that could be

treated with antipsychotic drugs. J.A. 267-268. Instead,

the district court had accepted the diagnosis of the gov-

ernment’s psychiatric expert, Dr. Buigas, that petitioner

suffers from a personality disorder (ibid.), a diagnosis

that petitioner also now accepts (Pet. Br. 3 & n.2). As

Dr. Buigas testified, petitioner’s personality disorder is

“characterological” in nature, “long-standing,” and “re-

sistant to change.” Buigas Report 10-11; see J.A. 127,

136-137, 138, 269. Contrary to petitioner’s suggestion

(Pet. Br. 7 n.3), Dr. Buigas did not testify that petitioner

could be successfully treated with antipsychotic drugs.

Instead, Dr. Buigas testified that those drugs “could

mitigate” some symptoms if petitioner had a delusional

disorder, a diagnosis that both Dr. Buigas and the dis-

trict court rejected. J.A. 146, 268. Moreover, the dis-

trict court was aware at sentencing that petitioner had

refused psychiatric medication in the past (J.A. 146),

had again refused such medication (Butner FMC Report

11), and was “not motivated to engage in any treatment”

(id. at 14).

Petitioner’s long history of violence towards his ex-

wife and their children—detailed in his ex-wife’s testi-

mony (J.A. 303-322), confirmed by the findings of the

judge who presided over their divorce (J.A. 411), and set

forth in the psychiatric reports submitted to the district

court, e.g., Butner FMC Report 3-4—established that

petitioner was a danger in the past and would pose a

danger in the future. Accordingly, petitioner’s sentence

——- =

bs ie ete we dl

„

would have been no different if he had received specific

notice of the Section 3553(a) variance based on the likeli-

hood that he would commit future crimes. The lack of

notice of the variance was harmless error.’

CONCLUSION

The judgment of the court of appeals should be af-

firmed.

Respectfully submitted.

PAUL D. CLEMENT

Solicitor General

ALICE S. FISHER

Assistant Attorney General

MICHAEL R. DREEBEN

Deputy Solicitor General

MATTHEW D. ROBERTS

Assistant to the Solicitor

General

SANGITA K. RAO

Attorney

MARCH 2008

* Petitioner is currently scheduled to be released from imprisonment,

after consideration of good time credits, on May 5, 2008. His release

would not, however, render the case moot. If this Court disagrees with

the government and concludes that the lack of notice was harmful error,

petitioner could request the district court to exercise its discretion

under 18 U.S.C. 3583(e) (2000 & Supp. V 2005) to reduce his term of

supervised release. See United States v. Johnson, 529 U.S. 53, 60

(2000).

APPENDIX

RELEVANT CONSTITUTIONAL PROVISIONS,

STATUTES, AND RULES

1. The Fifth Amendment to the United States Con-

stitution provides, in pertinent part:

No person shal] * * * be deprived of life, liberty, or

property, without due process of law.

2. Section 3553 of Title 18 of the United States Code

(2000 & Supp. V 2005) provides, in pertinent part:

Imposition of a sentence

(a) FACTORS TO BE CONSIDERED IN IMPOSING A SEN-

TENCE.—The court shall impose a sentence sufficient,

but not greater than necessary, to comply with the pur-

poses set forth in paragraph (2) of this subsection. The

court, in determining the particular sentence to be im-

posed, shall consider—

(1) the nature and circumstances of the offense

and the history and characteristics 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;

of the defendant; and

(la)

(D) to provide the defendant with needed edu-

cational or vocational training, medical care, or

other correctional treatment in the most effective

1 — — — nn

manner;

(3) the kinds of sentences available;

(4) the kinds of sentence and the sentencing

range established for—

(A) the applicable category of offense commit-

ted by the applicable category of defendant as set

forth in the guidelines—

(i) issued by the Sentencing Commission a

pursuant to section 994(a)(1) of title 28, United

States Code, subject to any amendments made :

to such guidelines by act of Congress (regard-

; less of whether such amendments have yet to

3 be incorporated by the Sentencing Commis-

sion into amendments issued under section 7

994(p) of title 28); and |

(ii) that, except as provided in section

3742 (g), are in effect on the date the defen-

dant is sentenced; or

(B) in the case of a violation of probation or

supervised release, the applicable guidelines or

policy statements issued by the Sentencing Com-

mission pursuant to section 994(a)(3) of title 28,

United States Code, taking into account any

amendments made to such guidelines or policy

statements by act of Congress (regardless of

whether such amendments have yet to be incor-

;

porated by the Sentencing Commission into

amendments issued under section 994(p) of title

28);

(5) any pertinent policy statement—

enn

(A) issued by the Sentencing Commission

4 pursuant to section 994(a)(2) of title 28, United J

States Code, subject to any amendments made to

such policy statement by act of Congress (regard-

less of whether such amendments have yet to be

incorporated by the Sentencing Commission into

amendments issued under section 994(p) of title

28); and

(B) that, except as provided in section

3742(g), is in effect on the date the defendant is

sentenced.’

(6) the need to avoid unwarranted sentence dis-

parities 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.

(b) APPLICATION OF GUIDELINES IN IMPOSING A

SENTENCE.—

(1) In General—Except as provided in paragraph (2),

the court shall impose a sentence of the kind, and within

the range, referred to in subsection (a)(4) unless the

court finds that there exists an aggravating or mitigat-

ing circumstance of a kind, or to a degree, not ade-

quately taken into consideration by the Sentencing Com-

So in original. The period probably should be a semicolon.

mission in formulating the guidelines that should result

in a sentence different from that described. In deter-

mining whether a circumstance was adequately taken

into consideration, the court shall consider only the sen-

tencing guidelines, policy statements, and official com-

mentary of the Sentencing Commission. In the absence

of an applicable sentencing guideline, the court shall

impose an appropriate sentence, having due regard for

the purposes set forth in subsection (a)(2). In the ab-

sence of an applicable sentencing guideline in the case of

an offense other than a petty offense, the court shall also

have due regard for the relationship of the sentence im-

posed to sentences prescribed by guidelines applicable

to similar offenses and offenders, and to the applicable

policy statements of the Sentencing Commission.“

(2) Child crimes and sexual offenses—

(A)? Sentencing—In sentencing a defendant con-

victed of an offense under section 1201 involving a minor

victim, an offense under section 1591, or an offense un-

der chapter 71, 109A, 110, or 117, the court shall impose

a sentence of the kind, and within the range, referred to

in subsection (a)(4) unless—

(i) the court finds that there exists an aggra-

vating circumstance of a kind, or to a degree,

not adequately taken into consideration by the

Sentencing Commission in formulating the

guidelines that should result in a sentence

greater than that described;

In United States v. Booker, 543 U.S. 220 (2005), this provision was

severed by the Court in order to remedy a Sixth Amendment violation.

So in original. No subpart (B) has been enacted.

(ii) the court finds that there exists a mitigat-

ing circumstance of a kind or to a degree,

that—

(I) has been affirmatively and specifi-

cally identified as a permissible ground of

downward departure in the sentencing

guidelines or policy statements issued un-

der section 994(a) of title 28, taking ac-

count of any amendments to such sentenc-

! ing guidelines or policy statements by

Congress;

(II) has not been taken into considera-

tion by the Sentencing Commission in for-

;

mulating the guidelines; and

(IIT) should result in a sentence differ-

ent from that described; or

(iii) the court finds, on motion of the Govern-

ment, that the defendant has provided sub-

stantial assistance in the investigation or pro-

secution of another person who has committed

| an offense and that this assistance established

| a mitigating circumstance of a kind, or to a

degree, not adequately taken into consider-

ation by the Sentencing Commission in formu-

lating the guidelines that should result in a

sentence lower than that described.

; In determining whether a circumstance was adequately

taken into consideration, the court shall consider only

| the sentencing guidelines, policy statements, and official

commentary of the Sentencing Commission, together

with any amendments thereto by act of Congress. In the

absence of an applicable sentencing guideline, the court

;

shall impose an appropriate sentence, having due regard

for the purposes set forth in subsection (a)(2). In the

absence of an applicable sentencing guideline in the case

of an offense other than a petty offense, the court shall

also have due regard for the relationship of the sentence

imposed to sentences prescribed by guidelines applica-

ble to similar offenses and offenders, and to the applica-

ble policy statements of the Sentencing Commission,

together with any amendments to such guidelines or

policy statements by act of Congress.

(e) STATEMENT OF REASONS FOR IMPOSING A SEN-

TENCE.—The court, at the time of sentencing, shall state

in open court the reasons for its imposition of the partic-

ular sentence, and, if the sentence—

(1) is of the kind, and within the range, described

in subsection (a)(4), and that range exceeds 24

months, the reason for imposing a sentence at a par-

ticular point within the range; or

(2) is not of the kind, or is outside the range, de-

scribed in subsection (a)(4), the specific reason for

the imposition of a sentence different from that de-

scribed, which reasons must also be stated with spec-

ificity in the written order of judgment and commit-

ment, except to the extent that the court relies upon

statements received in camera in accordance with

Federal Rule of Criminal Procedure 32. In the event

that the court relies upon statements received in

camera in accordance with Federal Rule of Criminal

Procedure 32 the court shall state that such state-

ments were so received and that it relied upon the

content of such statements.

"Sa eee

— - ea” Te

rr re

If the court does not order restitution, or orders only

partial restitution, the court shall include in the state-

ment the reason therefor. The court shall provide a

transcription or other appropriate public record of the

courts, statement of reasons, together with the order of

judgment and commitment, to the Probation System and

to the Sentencing Commission,, and, if the sentence

includes a term of imprisonment, to the Bureau of Pris-

ons.

3. Section 3742 of Title 18 of the United States Code

(2000 & Supp. V 2005) provides, in pertinent part:

Review of a sentence

(a) APPEAL BY A DEFENDANT.—A defendant may

file a notice of appeal in the district court for review of

an otherwise final sentence if the sentence—

(1) was imposed in violation of law;

(2) was imposed as a result of an incorrect appli-

cation of the sentencing guidelines; or

_ (8) is greater than the sentence specified in the

applicable guideline range to the extent that the sen-

tence includes a greater fine or term of imprison-

ment, probation, or supervised release than the max-

imum established in the guideline range, or includes

a more limiting condition of probation or supervised

release under section 3563(b)(6) or (b)(11) than the

maximum established in the guideline range; or

So in original. The second comma probably should not appear.

Fr Or a Le aa eae oS oe

ores, le OO re Ve

(4) was imposed for an offense for which there is

no sentencing guideline and is plainly unreasonable.

(b) APPEAL BY THE GOVERNMENT.—The Govern-

ment may file a notice of appeal in the district court for

review of an otherwise final sentence if the sentence—

(1) was imposed in violation of law;

(2) was imposed as a result of an incorrect appli-

cation of the sentencing guidelines;

(3) is less than the sentence specified in the ap-

plicable guideline range to the extent that the sen-

tence includes a lesser fine or term of imprisonment,

probation, or supervised release than the minimum

established in the guideline range, or includes a less

limiting condition of probation or supervised release

under section 3563(b)(6) or (b)(11) than the minimum

established in the guideline range; or

(4) was imposed for an offense for which there is

no sentencing guideline and is plainly unreasonable.

The Government may not further prosecute such appeal

without the personal approval of the Attorney General,

the Solicitor General, or a deputy solicitor general des-

ignated by the Solicitor General.

E * „ „ *

(f) DECISION AND DISPOSITION.—If the court of

appeals determines that—

(1) the sentence was imposed in violation of

law or imposed as a result of an incorrect application

of the sentencing guidelines, the court shall remand

oe. ae Se ee ee a ee ee aoe el ee ee

4 ‘ . * ' 2

..... r . ee Perey SS eae 8

the case for further sentencing proceedings with

such instructions as the court considers appropriate;

(2) the sentence is outside the applicable

guideline range and the district court failed to pro-

vide the required statement of reasons in the order

of judgment and commitment, or the departure is

based on an impermissible factor, or is to an unrea-

sonable degree, or the sentence was imposed for an

offense for which there is no applicable sentencing

guideline and is plainly unreasonable, it shall state

specific reasons for its conclusions and

(A) if it determines that the sentence is too

high and the appeal has been filed under subsec-

tion (a), it shall set aside the sentence and re-

mand the case for further sentencing proceedings

with such instructions as the court considers ap-

propriate, subject to subsection (g);

(B) if it determines that the sentence is too

low and the appeal has been filed under subsec-

N tion (b), it shall set aside the sentence and re-

mand the case for further senteneing proceedings

with such instructions as the court considers ap-

propriate, subject to subsection (g);

(3) the sentence is not described in paragraph (1)

or (2), it shall affirm the sentence.

(g) SENTENCING UPON REMAND.—A district court

to which a case is remanded pursuant to subsection

| (f)(1) or (f)(2) shall resentence a defendant in accor-

: dance with section 3553 and with such instructions as

10a

may have been given by the court of appeals, except

that—

(1) In determining the range referred to in sub-

section 3553(a)(4), the court shall apply the guide-

lines issued by the Sentencing Commission pursuant

to section 994(a)(1) of title 28, United States Code,

and that were in effect on the date of the previous

sentencing of the defendant prior to the appeal, to-

gether with any amendments thereto by any act of

Congress that was in effect on such date; and

(2) The court shall not impose a sentence outside

the applicable guidelines range except upon a ground

that—

(A) was specifically and affirmatively included

in the written statement-of reasons required by

section 3553(c) in connection with the previous

sentencing of the defendant prior to the appeal;

and

(B) was held by the court of appeals, in

remanding the case, to be a permissible ground of

departure.

XR XR XK K *

(j) DEFINITIONS.—For purposes of this section—

(1) a factor is a “permissible” ground of depar-

ture if it—

(A) advances the objectives set forth in sec-

tion 3553(a)(2); and

(B) is authorized under section 3553(b); and

lla

(2) a factor is an “impermissible” ground of de-

parture if it is not a permissible factor within the

meaning of subsection (j)(1).

4. Section 5037 of Title 18 of the United States Code

(2000 & Supp. V 2005) provides, in pertinent part:

Dispositional hearing

R K * *

(e) The term for which official detention may be or-

dered for a juvenile found to be a juvenile delinquent

may not extend—

(1) in the case of a juvenile who is less than eight-

een years old, beyond the lesser of—

(A) the date when the juvenile becomes twen-

ty-one years old;

(B) the maximum of the guideline range, pur-

suant to section 994 of title 28, applicable to an

otherwise similarly situated adult defendant un-

less the court finds an aggravating factor to war-

rant an upward departure from the otherwise ap-

plicable guideline range; or

would be authorized if the juvenile had been

tried and convicted as an adult; or

(2) in the case of a juvenile who is between eigh-

teen and twenty-one years old—

(A) who if convicted as an adult would be con-

victed of a Class A, B, or C felony, beyond the

lesser of—

12a

(i) five years; or

(ii) the maximum of the guidelines range,

pursuant to section 994 of title 28, applicable

to an otherwise similarly situated adult defen-

dant unless the court finds an aggravating fac-

tor to warrant an upward departure from the

otherwise applicable guideline range; or

(B) in any other case beyond the lesser of —

(i) three years; or

(ii) the maximum of the guideline range,

pursuant to section 994 of title 28, applicable

to an otherwise similarly situated adult defen-

dant unless the court finds an aggravating fac-

tor to warrant an upward departure from the

otherwise applicable guideline range; or

(iii) the maximum term of imprisonment

that would be authorized if the juvenile had

been tried and convicted as an adult

5. Rule 32 of the Federal Rules of Criminal Procedure

provides, in pertinent part:

Sentencing and Judgment

XR XR * * *

(e) Presentence Investigation.

(1) Required Investigation.

(A) In General. The probation officer must con-

duct a presentence investigation and submit a report

to the court before it imposes sentence unless:

(i) 18 U.S.C. § 3593(c) or another statute re-

quires otherwise; or

13a

(ii) the court finds that the information in the

record enables it to meaningfully exercise its

sentencing authority under 18 U.S.C. § 3553,

and the court explains its finding on the re-

cord.

(B) Restitution. If the law requires restitution,

the probation officer must conduct an investigation

and submit a report that contains sufficient informa-

tion for the court to order restitution.

(2) Interviewing the Defendant. The probation officer

who interviews a defendant as part of a presentence

investigation must, on request, give the defendant's

attorney notice and a reasonable opportunity to at-

tend the interview.

(d) Presentence Report.

(1) Applying the Advisory Sentencing Guidelines. The

presentence report must:

(A) identify all applicable guidelines and policy

statements of the Sentencing Commission;

(B) calculate the defendant's offense level and

criminal history category;

kinds of sentences available;

(D) identify any factor relevant to:

(i) the appropriate kind of sentence, or

(ii) the appropriate sentence within the ap-

plicable sentencing range; and

(E) identify any basis for departing from the

applicable sentencing range.

14a

(2) Additional Information. The presentence report

must also contain the following information:

(A) the defendant's history and characteristics,

including:

(i) any prior criminal record;

(ii) the defendant's financial condition; and

(iii) any circumstances affecting the defen-

dant’s behavior that may be helpful in impos-

ing sentence or in correctional treatment;

(B) verified information, stated in a nonargumen-

tative style, that assesses the financial, social,

psychological, and medical impact on any individ-

ual against whom the offense has been committed;

nonprison programs and resources available to

the defendant;

(D) when the law provides for restitution, infor-

mation sufficient for a restitution order;

(E) if the court orders a study under 18 U.S.C.

§ 3552(b), any resulting report and recommenda-

tion; and

(F) any other information that the court requires,

including information relevant to the factors un-

der 18 U.S.C. § 3553(a).

(3) Exclusions. The presentence report must exclude

the following:

(A) any diagnoses that, if disclosed, might ser-

iously disrupt a rehabilitation program;

(B) any sources of information obtained upon a

15a

promise of confidentiality; and

result in physical or other harm to the defendant

or others.

(e) Disclosing the Report and Recommendation.

(1) Time to Disclose. Unless the defendant has con-

sented in writing, the probation officer must not sub-

mit a presentence report to the court or disclose its

contents to anyone until the defendant has pleaded

guilty or nolo contendere, or has been found guilty.

(2) Minimum Required Notice. The probation officer

must give the presentence report to the defendant,

the defendant's attorney, and an attorney for the

government at least 35 days before sentencing unless

the defendant waives this minimum 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

presentence report, the parties must state in writing

any objections, including objections to material in-

formation, sentencing guideline ranges, and policy

statements contained in or omitted from the report.

(2) Serving Objections. An objecting party must pro-

vide a copy of its objections to the opposing party

and to the probation officer.

(3) Action on Objections. After receiving objections,

the probation officer may meet with the parties to

discuss the objections. The probation officer may

16a

then investigate further and revise the presentence

report as appropriate.

(g) Submitting the Report. At least 7 days before sen-

tencing, the probation officer must submit to the court

and to the parties the presentence report and an adden-

dum containing any unresolved objections, the grounds

for those objections, and the probation officer’s com-

ments on them.

(h) Notice of Possible Departure from Sentencing Guide-

lines. Before the court may depart irom the applicable

sentencing range on a ground not identified for depar-

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

hearing submission, the court must give the parties rea-

sonable notice that it is contemplating such a departure.

The notice must specify any ground on which the court

is contemplating a departure.

(i) Sentencing.

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

(A) must verify that the defendant and the defen-

dant’s attorney have read and discussed the

presentence report and any addendum 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 presentence report under Rule 32(d)(3)

on which the court will rely in sentencing, and

give them a reasonable opportunity to comment

on that information;

ment on the probation officer’s determinations

17a

and other matters relating to an appropriate sen-

tence; 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 parties to introduce evi-

dence on the objections. If a witness testifies at sen-

tencing, 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 pre-

sentence report or other controverted matter—

rule on the dispute or determine that a ruling is

unnecessary either because the matter will not

affect sentencing, or because the court will not

consider the matter in sentencing; and

ations under this rule to any copy of the presen-

tence report made available to the Bureau of Pri-

sons.

(4) Opportunity to Speak.

(A) By a Party. Before imposing sentence, the

court must:

(i) provide the defendant’s attorney an op-

portunity to speak on the defendant’s behalf;

18a

(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 government

an opportunity to speak equivalent to that of

the defendant’s attorney.

(B) By a Victim. Before imposing sentence, the

court must address any victim of a crime of vio-

lence or sexual abuse who is present at senten-

cing and must permit the victim to speak or sub-

mit any information about the sentence. Whether

or not the victim is present, a victim’s right to ad-

dress the court may be exercised by the following

persons if present:

(i) a parent or legal guardian, if the victim is

younger than 18 years or is incompetent; or

(ii) one or more family members or relatives

the court designates, if the victim is deceased

or incapacitated.

tion and for good cause, the court may hear in

camera any statement made under Rule 32(i)(4).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.