Reply Brief — Irizarry v. United States

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No. 06-7617

IN THE

Supreme Court of the United States

RICHARD IRIZARRY,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Eleventh Circuit

REPLY BRIEF FOR PETITIONER

JONATHAN D. HACKER

HARVARD Law SCHOOL

SUPREME COURT AND

APPELLATE ADVOCACY

CLINIC

1575 Massachusetts Ave.

Cambridge, MA 02138

ARTHUR J. MADDEN III

(Counsel of Record)

MADDEN & Soro

465 Dauphin Street

Mobile, AL 36602

(251) 432-0380

WALTER DELLINGER

MARK S. Davies

RYAN W. Scort*

SUSAN M. Moss

O'MELVENY & Myers LLP

1625 Eye Street, N.W.

Washington, DC 20006

* Admitted only in Illinois

BEST AVAILABLE COPY

/-§3 -08

;

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TABLE OF CONTENTS

Page

J TTT i

TABLE OF AUTHOUMN TIE ii

REPLY BRIEF FOR PETITIONER. .......................... 1

I. THE DISTRICT COURT ERRED IN

FAILING TO PROVIDE NOTICE OF

THE CONTEMPLATED GROUNDS

FOR IMPOSING A SENTENCE OUT-

SIDE THE CUIDELINE RANGE .................. 2

A. be Notice Requirement Of Rule

32 Applies To All Non-Guideline

Sentences a

B The Remaining Arguments Of

1 THE DISTRICT COURT'S ERROR

WARRANTS REMAND FOR A NEW

SENTENCING HEARING ........................... 18

A This Court Should Remand To

The Court Of Appeals 18

B. The Government Cannot Show

That The Error Was Harmiess .......... 22

r NE Te 32

APPENDIX la

“Poe |

se a a oe * * *

a @

Pee

TABLE OF AUTHORITIES

Page(s)

CASES

11 —

Brecht v. Abrahamson,

a . 20, 23

Brown u United States,

e 20

Burns v. United States

r passim

ä 19

Carella v. Coliforni

e 1.1 19

Central — NA. v. First Interstate

D 17

v. Coliforni

386 | 20, 21, 22, 23

460 US. 73 1 19

Dobbs v. Zant,

e 18

Edword J. DeBartolo Corp. v. Fla.

res

485 US. 568 Cl4ü0 ). 7

Fry u. Pliler,

. ———.— 23

Gall v. United

2 4. 6. 13, 19

S.A. v. Nordberg,

5 ͤͤ— 27

; v. Californi

r 20

v. United States,

„ 18

Koon v. United States,

4 — 13

3 Kotteakos v. United States,

$28 U.S. 760, 776 (% 23

Mathews }

424 82 s10 ste Sa 5, 7. 8

Medi 13

505 Us — . 7,8

. French,

ST 7

ton v. Wainwright,

407 U.S. 371 75 C 20

v. Smith,

r — 19

v. 7

r 18

513 US. rr 23

481 . 19

Rita v. Uni

ee passim

478 . 19

R ee Ae ee Fee ee ae eee eee

Satterwhite v. Texas,

r 20

Spencer u Texas,

3 385 US. ERE TEE ee ee 7

3 Townsend v.

. 6

SMT 3 1 22

United States v.

461 F'3d 258 (2d Gi 1 11

States v

432 Fad 725 (4th Cir D 11

nited States v. Booker,

1 passim

States v. Calzada .

443 F.3d 1301 (10th Cir. 2006)................. 4, 21, 22

United States v. Cousins,

469 F.3d 572 (6th Cir. 2006) 29

United States v.

r 16

Uni a

326 F.3d 45 (2d C 200) 22

4 513 F.3d 424 (4th Cir, 20080). 30

471 F.3d 64 (2d Cir, 2000ꝙ/%ꝗ ũ 30

nited States v. Hasting,

461 U.S. 499 (188 19, 20

United States v. Hawk

433 F.3d 622 (8th Cir. 2006) 4

* U 2

476 F.3d 791 (9th Cir.), cert. denied,

e ... 23

D rr c reer

United States u Himler

355 F.3d 735 (3d Cir. 2004) )))) 21, 30

United States v. Lane,

e 20

United States v. Lane,

609 F.3d 771 (ch Cir. 2000. 4

United States v. Lopreato,

83 F.3d 571 (2d Cir), cert. denied,

e 21. 22

United States v. Martin,

455 F.3d 1227 (11th Cir. 20060 +

United States v. McBride,

434 F.3d 470 (6th Cir 20060). 4

United States v. McClung,

483 F.3d 273 (4th Cir. 200 f)) 30

United States v. Meeker,

411 F.3d 736 (6th Cir. 20050) 30

United States v. Paslay,

971 Fd 667 (Lith Cir. 1992). 21

United States u Ramirez,

479 F.3d 1229 (10th Cir. 2007) 22

United States v. e

495 F.3d 820 (7th Cir. 200 f)) 4

United States v. Smith,

ara FUSES (he Ge 11 4

eed e. 2 D 11

United States u.

No. 06-1558, WL 451813

IZ 3. 9, 12

United States v. Vowell,

516 F.3d 503 (6th Cir. 200) 11

United States v. Walters,

490 F.3d 371 (5th Cir. D Poe 4

r ee See we ee? a ae cae we ON wae

United States v. Wise,

976 F.2d 393, 412 (8th Cir. 1992ꝶ 8

vous 391 ST etihintetilititiaiecpsesbenrearnscsncenensteel 20

STATUTES

ä passim

ä 14. 28

18 U.S.C. en ———.—. 28

r 26. 29

. 26

RULES

rr passim

LL 28

Bt Fe i icitrsttntcncccn stern ccecrnetevecses passim

Fed. R Crim. P. Za passim

SECTENCING PROVISIONS

U.S.S.G. § 1B1.1, emt. n 1 eee 3. 15

U.S.S.G. § 4A1.2

Commentary Background 24

. 24

r passim

e 25

e 14

1 17

izing Bool

38 —— 12

REPLY BRIEF FOR PETITIONER

As the United States recognizes, the sound ad-

ministration of federal criminal sentencing war-

r 1 *

I. THE DISTRICT COURT ERRED IN

FAILING TO PROVIDE NOTICE OF.

THE CONTEMPLATED GROUNDS

FOR IMPOSING A SENTENCE OUT-

SIDE THE GUIDELINE RANGE

Rule 32(h) and Rule 32(i)(1)(C) provide inde-

pendent textual bases for the requirement that

advance the purposes of Rule 32 by ensuring full

and fair adversarial testing of the contemplated

grounds for the sentence. Avoiding a serious due

process question is an additional reason to con-

strue Rule 32 to require reasonable notice.

The arguments of amicus curise defending the

judgment below are unpersuasive. A requirement

of reasonable notice would neither impose admin-

istrative burdens on district courts nor deter them

from entering sentences at variance with the

guideline range. Amicus's contention that sen-

tences based on the Section 3553({a) factors are

pure exercises in judgment, divorced from ques-

tions of fact, does not withstand scrutiny. And

the advisory committee's decision to postpone

consideration of an amendment to Rule 32(h) is

irrelevant.

A. The Notice Requirement Of Rule 32

Applies To All Non-Guideline Sen-

tences

1. Amicus contends (Amicus Br. 19-20) that

Rule 32(h) has no application to non-guideline

sentences based on the Section 3553(a) factors be-

cause the text of the rule uses the words “depart”

and “departure.” Even before United States v.

Booker, 543 U.S. 220 (2005), however, the Guide-

lines generally defined “departure” as the “impo-

sition of a sentence outside the applicable guide-

line range or of a sentence that is otherwise dif-

ferent from the guideline sentence.” USSG.

§ 1B1.1, cmt. n. 10D) see also U.S.SG. ch. 1, pt.

A4(b) (1991). Because a variance based on the

“departure” has 4 Sm Fpnamnrrd pr gain

fers exclusively to non-guideline sentences based

on § 4A1.3 and parts H and K of chapter 5 of the

Sentencing Guidelines. Amicus Br. 19-20 (quot-

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

2008 WL 451813, at *1 (Ist Cir. Feb. 21, 2008) (en

banc)). Neither amicus nor the Vega-Santiago

451813, at 1. To the contrary, this Court and

nearly every court of appeals—including the court

below—have used the word “departure” to de-

States, 127 S. Ct. 2456, 2464 (2007) ("The sentenc-

ing courts, applying the Guidelines in individual

i 2 ee. oo

cases may depart (either pursuant to the Guide-

lines or, since Booker, by imposing a non-

' See, eg., United States v. Calzada-Maravillas,

443 F.3d 1301, 1304 (10th Cir. 2006) (distinguishi

between “guideline departurelsf and

of Chapter 5 departures ... as

In turn, sentences lower than the Guidelines recom-

mendation based on section 3553(a) factors can be

thought of as Non-Guideline departures . . ). United

States v. Lane, 509 F.3d 771, 775-76 (6th Cir. 2007);

United States v. Santiago, 495 F.3d 820, 825 (7th Cir.

2007); United States v. Walters, 490 F.3d 371, 372, 374

(5th Cir. 2007); United States v. Smith, 472 F.3d 222,

25 2006); United States v. Hawk Wing

determinations and other matters relating to an

appropriate sentence.” See Burns, 501 U.S. at

132. If anything, Booker makes it even more diffi-

cult to “guess when or on what grounds” a district

court might sentence outside the guideline range,

reinforcing the need for reasonable notice to allow

the parties “to ‘comment’ on such a possibility in a

coherent way.” Burns, 501 U.S. at 136-37. Be-

cause the broad factors described in Section

3553(a), like the Guidelines, “piace essentially no

limit on the number of potential factors that may

warrant” a non-guideline sentence, id. at 136, the

reasoning of Burns applies with equal, if not

greater, force to non-guideline sentences based on

Section 3553(a). See Rita, 127 S. Ct. at 2465 (cit-

ing Rule 32(h), Rule 32(i)(1)(C), and Burns for the

proposition that “the sentencing court subjects the

defendant's sentence to the thorough adversarial!

testing contemplated by federal sentencing proce-

dure,” even for sentences reviewed for reason-

ableness on appeal after Booker).

3. Amicus also contends (Amicus Br. 47-53)

that a district court's decision to impose an above-

guideline sentence without prior notice to the de-

fendant presents no serious due process question.

That contention underestimates the strength of

the due process interests at stake.

Although the Court in Burns did not elaborate

on the constitutional question it sought to avoid,

501 U.S. at 138, the parties and the dissent ap-

proached the issue using the balancing test of

Mathews v. Eldridge, 424 U.S. 319 (1976). See id.

at 147 (Souter, J., dissenting), Under that

framework, there remains a serious constitutional

question whether a district court may sua sponte

impose an above-guideline sentence without no-

tice to a criminal defendant. As this Court recog-

nized in Townsend v. Burke, 334 US. 736, 741

(1948), due process protects a defendant's liberty

interest in the length of a sentence and prohibits

sentences that are predicated on “misinforma-

tion.” A district court s sua sponte deviation from

the guideline range poses a serious risk of depri-

vation by leaving “critical sentencing determina-

tionſsf relevant to that decision “untested.”

Burns, 501 U.S. at 137. Reasonable notice of the

contemplated grounds, by contrast, safeguards

the defendant's interest because it affords the de-

fendant a full and fair opportunity to challenge

the factual and legal basis for the court’s action.

Id. The government's interest does not outweigh

those considerations. As the United States vigor-

ously argues, the prosecution has a corresponding

interest in reasonable notice and accuracy, and

any burden on the courts is minimal. Gov't Br.

26-28, 32-34; see infra 8-11.

Amicus suggests (Amicus Br. 50-51) that

Booker has undercut a defendant's due process

interest in a guideline sentence. It is true that, in

the wake of Booker, a defendant no longer has an

entitlement to a guideline sentence “in the ab-

sence of grounds defined by the Act as justifying

departure.” Burns, 501 U.S. at 147 (Souter, J.

dissenting). Yet the Guidelines continue to serve

as “the starting point and the initial benchmark”

for every sentence, and the court must offer a suf-

ficient justification for a decision to sentence out-

side the guideline range. Gall, 128 S. Ct. at 596-

97. The Court in Rita emphasized the continuing

“importance of notice and meaningful opportunity

to be heard at sentencing” after Booker. 127 S.

Ct. at 2465. Thus, as in Burns, the avoidance of a

serious constitutional question provides an addi-

tional reason to construe Rule 32 to provide rea-

sonable notice.?

Amicus also argues that Medina v. California,

505 U.S. 437, 446 (1992), rather than Mathews,

governs the due process inquiry. Neither the con-

text nor the logic of Medina, however, extends to

these circumstances. In Medina, the Court de-

clined to apply Mathews to state-court trial pro-

ceedings because “[t}he Bill of Rights speaks in

explicit terms to many aspects of criminal proce-

dure,” and the Due Process Clause does not es-

tablish this Court as a rule-making organ for the

promulgation of state rules of criminal proce-

dure.” 505 U.S. at 443 (quoting Spencer v. Texas,

385 U.S. 554, 564 (1967)). The Bill of Rights is

? Amicus also contends that the canon of constitu-

tional doubt has no application here because Rule 32

is unambiguous. Amicus Br. 47 (citing Miller v.

French, 530 U.S. 327, 341 (2000)). That argument is

foreclosed by Burns, which found a sufficient textual

basis for a notice requirement in Rule 32(i)(1)(C) and

applied the avoidance canon so as not to “confront the

serious question whether notice in this setting is man-

dated by the Due Process Clause” 501 US. at 138

(citing Edward J. DeBartolo Corp. v. Fla. Gulf Coast

Bldg. & Consir. Trades Council, 485 U.S. 568, 575

(1988)). Since that decision, Rule 32 has gained a sec-

ond textual hook: the express requirement of reason-

able notice for “departures” in Rule 32(h).

silent, however, on post-trial proceedings like

criminal sentencing. In the absence of such “ex-

plicit [constitutional] terms,” the background due

process analysis of Mathews remains applicable.

See id. at 454-55 (O’Connor, J., concurring) (deem-

ing the Mathews test appropriate “in the context

of modern administrative procedures,” including

“the new administrative regime established by

the ſederal criminal sentencing guidelines”);

Burns, 501 U.S. at 147 (Souter, J., dissenting).

Further, bec use Medina rested on state legisla

tures’ “considerable expertise in matters of crimi-

nal procedure,” 505 U.S. at 445-46, it has never

been extended to federal-court proceedings. See

United States u. Wise, 976 F. 2d 393, 412 n. 4. (8th

Cir. 1992) (“The Court's reasoning lin Medina)

draws heavily on considerations of federalism,

and it seems that Mathews is still generally appli-

cable under the Due Process Clause of the Fifth

Amendment) (citation omitted).

B. The Remaining Arguments Of Amicus

Lack Merit

Amicus advances three additional argument:

to defend the decision below. None of these ra-

tionales was relied upon by the court of appeals

(JA. 399-400), and none is convincing.

l.a. Amicus mistakenly argues (Amicus Br.

28-36) that a requirement of reasonable notice

would be “burdensome” for administrative rea-

sons. In Burns, however, this Court recognized

that it is only “the extraordinary case” in which

the district court departs “on its own initiative

and contrary to the expectations of both the de-

eT ere! hl

E ee em ee

— ep eer ae

i ee ye!

ret Fo UV RN . 5

eae ae” ae, ee! eee ee) eee

fendant and the Government.” 501 U.S. at 135.

After Booker, sua sponte non-guideline sentences

remain rare. The Sentencing Commission's final

quarterly report for fiscal year 2007 reveals that

out of 51,997 sentences, only 9,493 (18.3%) fell

outside the guideline range. Even fewer (6,604

sentences, or 12.7%) identified Booker or Section

3553(a) as a basis for sentencing outside the

guideline range.* And in the overwhelming ma-

jority of those cases, the ground for the non-

guideline sentence was specifically identified in

the presentence report (PSR) or by the parties.

Gov't Br. 32. It is only “the extraordinary case” in

which the district court surprises the parties by

sentencing outside the guideline range on previ-

ously undisclosed grounds. Vega-Santiago, 2008

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

cerns “that an advance notice rule would often re-

quire a two-stage sentencing process” are “at odds

with reality”).

Moreover, even under the construction

adopted by the court of appeals (see J.A. 398-99),

Rule 32 compels district court judges to determine

before sentencing whether the PSR or a partys

submission recommends a departure under the

Guidelines. See Fed. R. Crim. P. 32(h). If none

has been suggested, but the district court none-

theless believes a Guidelines departure may be

warranted, the court is obligated to provide rea-

sonable notice to the parties “specify[ing) any

ground on which the court is contemplating a de-

> See App. infra, la. All figures exclude govern-

ment-sponsored below-range sentences. Id. n

r ee ee a ee ee es ee ee ee

~ yet YY “es ee OS ee Se a lL ee;

;

parture.” Jd. There is no reason to believe that

the marginal burden of considering possible

grounds for a non-guideline sentence under Sec-

tion 3553(a) at the same time would prove un-

workable.‘

Amicus poses a series of rhetorical questions

designed to show that a reasonable-notice re-

quirement would be unworkable. See Amicus Br.

31-32 (questioning the timing of the required no-

tice, the “amount” and specificity of notice, district

and the length of a necessary continuance). But

identical questions about the timing and content

of “reasonable notice” arose under Burns. See

Burns, 501 U.S. at 139 n.6 (‘Because the question

of the timing of the reasonable notice required by

Rule 32 is not before us, we express no opinion on

that issue.”). Those concerns were no obstacle to

the recognition of a notice requirement in that

case, and they should not assume any greater im-

portance here. In addition, courts of appeals that

require reasonable notice for all non-guideline

sentences already have begun to address those

‘ For the same reason, the contention that a rea-

sonable notice requirement will transform the Cnme

Victim's Rights Act (CVRA) “into a procedural! night-

mare (Amicus Br. 33) cannot be credited Victim im-

pact testimony may identify grounds for Guidelines

departures as well as reasons for Booker variances.

Amicus offers no evidence that Rule 32 has rendered

the CVRA “an empty exercise” anywhere, let alone

that the effect has been more pronounced in circuits in

which the notice requirement applies to variances.

See Amicus Br 34

el, a ee, tie et ee ee

see mr ) he sof,

oe ee

Tre DS Se ae ee ee Cae’

no =a. 4 eee

Om Ae

as. Se eon.

questions Amicus points to no evidence of wide-

spread continuances, a breakdown in appellate

review, or other dire consequences in those cir-

cuits.

b. Amicus argues that a notice requirement

would be “problematic” under the Sixth Amend-

ment because it “risks creating an excessive

‘gravitational pul!’ back toward the Guidelines.”

Amicus Br. 29 (quoting Rita, 127 S. Ct. at 2487

(Souter, J., dissenting)). In amicus's view, district

courts eager to avoid the “practical costs” of pro-

viding reasonable notice will impose within-

guideline sentences even in cases where the Sec-

tion 3553(a) factors justify an out-of-guideline

sentence. Id. That contention begins from the

faulty premise that district court judges would

prefer to impose the wrong sentence rather than

bear the “modest burden of preparing a brief no-

See United States v. Tate, 516 F.3d 459, 468 (6th

Cir. 2008) (notice need only identify factors that will

“play{) la] significant role in the imposition of [the]

sentence”); United States u. Vowell, 516 F.3d 503, 515

(6th Cir. 2008) (timing of notice “is a context-specific

question” that depends on the complexity of the issues

and the availability of cumulative evidence on the rele-

vant ground); United States v. Blatstein, 482 F.3d 725,

732 (4th Cir. 2007) (notice must enable the parties to

“subject the rationale for the variance to the adversar-

ial testing process contemplated by Rule 32") (empha-

sis added); United States v. Anati, 457 F.3d 233, 238

(2d Cir. 2006) (notice must “facilitate a defendant's

opportunity to contest the factual premises of the sen-

tencing judge's view” of the Section 3553(a) factors)

(emphasis added).

tice.” Vega - Santiago, 2008 WL 451813, at 12

In any event, amicuss “gravitational pull”

claim is foreclosed by Rita There, the Court saw

partures, amicus argues, because such notice “is

justified and administratively feasible” when con-

)

r ee ee ee eee

fined to “whatever case facts may seem atypical,”

but unworkable if extended to judgments. /d. at

25. For several reasons, that distinction does not

withstand scrutiny.

First, Booker variances are almost always “)us-

tified on the basis of distinct facts” as well. In

Gall, for example, the district court entered a be-

low-guideline sentence in light of the Section

3553(a) factors. It expressly based that judgment

on facts about the case: the defendant's voluntary

duct. 128 8. Ct. at 593. Although no factual find-

ing is necessary before imposing a non-guideline

sentence based on the Section 3553(a) factors, see

Booker, 543 U.S. at 259, it is undeniable that

facts—not just abstract judgments—typically

serve as the basis for a Booker variance. Gall, 128

S. Ct. at 597 (the “individualized assessment” re-

Section 3553(a). The same atypical case facts

r e

chooses to characterize its decision.

Third, amicus's distinction between facts and

judgment is irrelevant to the text and purpose of

Rule 32. Rule 32(h) by its terms requires reason-

able notice for any “departure,” which the Guide-

lines define as a “sentence outside the applicable

guideline range U.S.S.G. §1B1.1, emt. n.1(E).

Even if Booker variances were pure exercises in

judgment, they would still fall within that defini-

tion. Similarly, Rule 32(i)(1)(C) grants parties a

right to comment on all “matters relating to an

appropriate sentence,” and judgments that might

lead to a non-guideline sentence certainly qualify

as matters related to an appropriate sentence.

Construing either provision to require reasonable

notice would advance “Rule 328 purpose of pro-

moting focused, adversarial resolution of the lega!

and factual issues. Burns, 501 US. at 137.

Without such notice, as in Burns, parties would

be forced either to “address possible sua sponie

{variances} in a random and wasteful way by try-

ing to anticipate and negate every conceivable

range, or to “not even try to anticipate such a de-

velopment,” leaving “a critical sentencing deter-

mination. . untested by the adversarial process

contemplated by Rule 32.” Jd.

3. Amicus also claims thet the Court should

confine Rule 32(h) to Guidelines departures be-

cause the rulemaking process “has considered and

rejected the very rule Petitioner seeks.” Amicus

Br. 17; see id. at 42-46. That claim misstates the

rulemaking proceedings and draws an unwar-

ranted inference from the advisory committee s

r 45), the Advi-

ee ee

dangerous ground on which to rest an interpreta-

tion of a prior statute.” United States v. Craft,

* Report of the Advisory Committee on Criminal

Rules, Dec. 12, 2007, at 4, available at http://

www.uscourts.gov/rules/Reports/CR 12-2007 pdf

id (emphasis added)

535 U.S. 274, 287 (2002). Not only do the minutes

and public comments reveal extensive supportive

statements as well. lo but the vote before the advi-

sory committee reflected its belief that further

study was needed to determine “whether either

due process or the current text of Rule 32(h) re-

quire notice to be given if the court is considering

non guideline sentencing factors that have not al-

ready been identified. Some committee mem-

bers aleo “expressed the view that this was an

evolving area of the law that was not yet ripe for

codiſication 12 Because “several equally tenable

inferences may be drawn from such inaction, in-

cluding the inference that the existing legislation

already incorporated the offered change,” Central

Bank, N.A. v. First Interstate Bank, N.A., 511 U.S.

164, 187 (1994), the proposed amendment does

not preclude this Court from properly construing

Rule 32(h) and Rule 32(i)(1)(C) to impose a re-

quirement of reasonable notice for Booker vari-

ances.

% See Minutes of the Oct. 26-27, 2006 Meeting of

the Advisory Committee on Criminal Rules at 4, avail-

able at http:/www.uscourts gov/rules/Minutes/CR-10-

http://www. uscourts.gov/rules/CR% 20Rules% 202005 h

tm.

Report of the Advisory Committee on Criminal

Rules, Dec. 18, 2006, at 2, available at http://www.us-

courts. gov/rules/Reports/CR 12-2006. pdf.

1 Jd.

II. THE DISTRICT COURT’S ERROR WAR-

RANTS REMAND FOR A NEW SENTENC-

ING HEARING

The government agrees that the district court

erred in failing to provide reasonable notice of the

contemplated grounds for its non-guideline sen-

tence. It nonetheless asks this Court (Gov't Br.

37-48) to review the record and determine that

the error was harmless. Consistent with its ordi-

nary practice, the Court should remand to allow

the court of appeals to consider that question in

the first instance. If, however, the Court elects to

conduct an independent review to reach the harm

less-error question, it should find prejudice and

remand the case for a new sentencing hearing.

A. This Court Should Remand To The

Court Of Appeals

1. The government invites this Court (Gov't

Br. 38-39) to conduct a plenary review of the re-

cord and determine in the first instance whether

the notice error was prejudicial Nothing about

this case justifies that unusual action. The case

instead should be remanded to the court of ap-

peals.

This Court has repeatedly explained that its

“normal practice where the court below has not

yet passed on the harmlessness of any error is to

“remand thfe} case to the Court of Appeals” to

consider whether the error was harmless “in the

first instance Neder v. United States 527 U.S.

1, 25 (1999); see, eg. Dobbs v. Zant, 506 U.S. 357,

359 n.* (1993) (per curiam) (Mie see no reason to

depart here from our normal practice of allowing

courts more familiar with a case to conduct their

own harmiess-error analyses); Carella v. Cali-

fornia, 491 U.S. 263, 266-67 (1989); Pope v. Illi-

nois, 481 U.S. 497, 504 (1987); Rose v. Clark, 478

U.S. 570, 584 (1986); California v. Green, 399 U.S.

149, 169-70 (1970).

That practice follows from the Court's ordinary

presumption that it doſes] not decide in the first

instance issues not decided below.” NCAA v.

Smith, 525 U.S. 459, 470 (1999). It also reflects

the courts of appeals’ relatively greater experience

reviewing an entire district court record and ap-

plying harmless-error analysis. Connecticut v.

Johnson, 460 U.S. 73, 102 (1983) (Powell, J., dis-

senting) (even when “this Court properly could

decide the question of harmless error,” it is “a

question more appropriately left to the courts be-

low” because “[t}]here may be facts and circum-

stances not apparent from the record before us)

The government relies (Gov't Br. 38) on United

States u. Hasting, 461 US. 499 (1983), for the

proposition that the Court “plainly hals] the au-

thority” to reach the harmless-error question. Id.

at 510. But no one doubts the Court's authority to

consider harmlessness; the Court's longstanding

practice is to forego the exercise of that authority

except in unusual circumstances. As the Court in

Hasting emphasized, in the same sentence relied

upon by the government, “we are not required to

review records to evaluate a harmless error claim,

and do so sparingly.” Id. (emphasis added).

Traditionally, the Court has conducted its own

review for harmlessness only in limited circum-

i~¢s eee tides De

stances. First, the Court has conducted an inde-

pendent harmless-error analysis where the court

of appeals already passed on that question. See

Brecht v. Abrahamson, 507 U.S. 619, 638 (1993);

Yates v. Evatt, 500 U.S. 391, 407 (1991); Hasting,

461 U.S. at 503-04; Brown v. United States, 411

U.S. 223, 231 (1973). Second, in some cases, the

a has granted certiorari precisely to decide

the applicability of harmless-error review. See

Arizona v. Fulminante, 499 US. 279, 284-85

(1991); Satterwhite v. Texas, 486 U.S. 249, 251

(1988); United States v. Lane, 474 U.S. 438, 439.

40 (1986); Harrington v. California, 395 U.S. 260,

252 (1969); Chapman v. California, 386 US. 18,

20 (1967). Third, on occasion the Court has de-

clined to reach the merits of a claim of error and

instead has determined that the error, if any, was

harmless. See Milton v. Wainwright, 407 U.S.

371, 372 (1972).

None of those circumstances exists here. The

court of appeals found no error, and therefore has

not yet considered the government's contention

that the error was harmless. See JA. 398-400.

This Cort granted certiorari to resolve a circuit

conflict over whether reasonable notice was re-

quired for non-guideline sentences based on Sec-

tion 3553(a), and the government makes no claim

that the proper application of harmless-error re-

view independently warrants this Court's atten-

tion. Nor has either party urged that the Court

resolve the harmless-error issue instead of resolv-

ing the question presented.

2. The government notes that “[t}he parties

have fully briefed the ſharmlessness] issue,” and

urges that the Court’s independent assessment of

the record in this case “would provide vital guid-

ance to the lower courts.” Gov't Br. 38. Those

factors, however, do not distinguish this case from

Burns, where the parties had fully briefed the

harmless-error question, see Pet. Br. 37-42, Burns

v. United States, No. 89-7260, available at 1990

WL 505507 (Aug. 13, 1990), but the Court con-

formed to its ordinary practice by remanding the

case to the court of appeals. See Burns, 501 US.

at 133. If anything, the need for guidance was

greater in Burns because, in that case, lower

courts had never before been called upon to assess

whether a failure to provide notice was prejudi-

cial. The government offers no reason to believe

that “vital guidance” is now needed to assist lower

courts in continuing to apply the same form of

harmless-error analysis they have applied for

seventeen years.

3. The existence of a separate question con-

cerning the governing standard of harmless-error

review is an additional reason to remand the case.

Two courts of appeals have held that every viola-

tion of the rule announced in Burns implicates

due process and is therefore subject to harmless-

error review under the Chapman standard for

constitutional error. See United States v. Lo-

preato, 83 F.3d 571, 577 (2d Cir.), cert. denied, 519

U.S. 871 (1996); United States u. Paslay, 971 F.2d

667, 674 (11th Cir. 1992). Two other courts of ap-

peals have expressly reserved the question. See

Calzada-Maravillas, 443 F.3d at 1307 n3 (10th

Cir. 2006); United States v. Himler, 355 F.3d 735,

743 (3d Cir. 2004). Those decisions demonstrate,

at a minimum, that a serious question exists as to

the proper standard. Review by this Court is

therefore unwarranted. Cf. Tuggle v. Netherland,

516 U.S. 10, 14 (1995) (where the lower court “did

not consider whether, or by what procedures, the

sentence might be sustained or reimposed and

did not addressſl whether harmless-error analy-

sis is applicable to this case,” remand was appro-

priate ſblecause this Court customarily does not

address such an issue in the first instance”). '*

B. The Government Cannot Show That

The Error Was Harmiess

In the event that the Court chooses to resolve

the harmless-error question, it should order a new

sentencing hearing because the error was prejudi-

cial regardless of the applicable standard of re-

% The government maintains that a criminal de-

fendant must preserve a “separate due process claim

to benefit from the Chapman standard, relying on

Confrontation Clause decisions from the Second and

Tenth Circuits. Gov't Br. 40 (citing United States v.

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

States u. Ramirez, 479 F.3d 1229, 1246-47 (10th Cir.

2007)). The Second Circuit, however, has expressly

rejected the requirement of a separate due process

claim as a precondition to Chapman review in this

context, see Lopreato, 83 F.3d at 577, and the Tenth

Circuit has held the question open, see Calzada-

Maravillas, 443 F.3d at 1307 n.3. If the Court were to

conclude that the government has carried its burden

under Kotteakos, but that it has failed to show harm-

lessness beyond a reasonable doubt under Chapmun,

then the Court would be forced to engage in a due

process analysis that it otherwise could avoid.

“ye Fs ey.

ö . 6 Ded ie Bek

view. See United States v. Hernandez, 476 F. 3d

791, 801 (9th Cir. 2007), cert. denied, 128 S. Ct.

265 (2007) (declining to decide whether the error

was constitutional in nature because under either

standard the error was not harmless).

The district court’s imposition of the statutory

maximum sentence was predicated on the un-

tested and questionable premise that Mr. Irizarry

would continue to threaten his wife “regardless of

what kind of supervision he’s under.” JA. 374.

Nothing in the PSR alerted defense counsel of the

importance of the dispute over Mr. Irizarry's

amenability to alternative forms of supervision,

including psychiatric treatment. The record re-

veals substantial evidence, not brought to the at-

tention of the court at sentencing, indicating that

a guideline-range term of imprisonment followed

by psychiatric treatment as a condition of super-

vised release would have been a sufficient sen-

tence.

1. The standard articulated in Kotteakos v.

United States, 328 U.S. 750, 776 (1946), “places

the burden on prosecutors to explain why thle]

errors were harmless.” Brecht, 507 U.S. at 640

(Stevens, J., concurring). The reviewing court

must “evaluate the error in the context of the en-

tire trial record.” Id. at 641-42. If the court is left

with “grave doubt” about the effect of the error, it

may not treat the error as harmless. Fry v. Pliler,

127 S. Ct. 2321, 2328 n.3 (2007); ONeal v. McAn-

inch, 513 U.S. 432, 438-39 (1995).

The government principally contends (Govt

Br. 41-43) that the portion of the PSR discussing

i. mm ee See ee oe.

= "\* . eu «

Sor r

;

a possible criminal-history departure under Sen-

tencing Guidelines § 4A1.3 renders the notice er-

ror harmless. That contention is flawed because

the PSR focused on Mr. Irizarrys criminal his-

tory, and the district court did not impose a non-

guideline sentence on that basis.

The PSR calculated that Mr. Irizarry had zero

criminal history points, resulting in a criminal

history category of I. JA. 410. In reaching that

conclusion, however, the PSR discounted four

prior adult offenses (three of them for driving

with a suspended license) because they fell out-

side the applicable time limits, see U.S.S.G.

§ 4A1.2(e), and it discounted his prior conviction

for violating the South Carolina restraining order

because Mr. Irizarry was not represented by

counsel, see U.S.S.G. § 4A1.2 Commentary Back-

ground. J. A. 408-10. The final paragraph of the

PSR stated that “[pjursuant to Guideline 4A1.3

(Adequacy of Criminal History Category), the

Court may consider whether or not the defen-

dant's criminal history category adequately re-

flects the defendant's past criminal conduct or the

likelihood that the defendant will commit other

crimes.” J. A 417. In that event, the PSR stated,

a departure under § 4A1.3 might be warranted.

Id.

Seizing upon the reference to “the likelihood

that the defendant will commit other crimes,” the

government argues (Gov't Br. 42) that the notice

error in this case was harmless because Mr. Iri-

zarry had “every incentive” to discuss his future

dangerousness at sentencing. In context, how-

ever, the PSR refers only to Mr. Irizarrys past

: 1 8

nenne

;

„

criminal conduct as an indicator of future danger-

ousness. JA. 417; U.S.S.G. § 4A1.3(a)(2) (enu-

merating particular conduct that may be under-

represented in a defendant's criminal history

score, justifying an upward departure). That

plainly was not the basis for the district court's

sentence. The district court made no finding that

Mr. Irizarrys criminal history category underrep-

resented his dangerousness; in fact, it expressly

found that criminal history category I was appro-

priate. J. A. 372. Neither the court nor the par-

ties invoked § 4A1.3 during sentencing. See J.A.

374-75; Gov't Br. 42 n.7.

Nor did the district court in effect ground its

sentence on a judgment about Mr. Irizarry's

criminal history. In explaining its reasons for

sentencing above the guideline range, the court

relied in substantial part on the likely effective-

ness of alternative forms of punishment or super-

vision:

I find the guideline range is not appropriate

in this case. I find Mr. Irizarrys conduct

most disturbing. I am sincerely convinced

that he will continue, as his ex-wife testi-

fied, in this conduct regardless of what this

court does and regardless of what kind of

supervision he’s under. And based upon

that, I find that the maximum time that he

can be incapacitated is what is best for soci-

ety, and therefore the guideline range, I

think, is not high enough.

J. A. 374-75 (emphasis added). That passage con-

tains two distinct rationales: first, that Mr. Iri-

r d oe N eee

at a suitable facility under 18 U.S.C. § 4244(d)).

Yet the district court gave no indication until

the moment it announced its sentence that the

supposed futility of treatment might justify a sen

tence above the guideline range. Neither the PSR

nor a prehearing submission by the government

identified that potential ground for deviation from

es t lO a! oe eee ee eee ee ee ts ee! ee eee

golne] untested by the adversarial process con-

templated by Rule 32 501 U.S. at 137. Because

Mr. Irizarry's prospects for treatment played a

cern about the potential for dangerousness” and

“third-party risk.” J.A 188-89.

For the same reasons, the government is mis-

taken in its novel suggestion (Gov't Br. 42 n.7) that

“there was no notice error at alf in this case The

government did not oppose certiorari on that basis, see

Gov't Br. in Opp. 14, and it never pressed that claim

before court of appeals. See Granfinanciera, S.A. v

ee r / r ee eee

Rr ee ea ee eS

;

testimony, the denial of an adjustment for accep-

tance of responsibility, and the upward adjust

ment for intent to carry out the threats. The por-

tions of the PSR and sentencing hearing that ad-

dressed those issue did not address the key ques-

tion whether any form of supervision other than

* 7

* .

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— 4

rere reer Tee

the offense or the defendant's history that, in the

court's view, might justify a non-guideline sen-

tence. If general discussion of the relevant Sec-

tion 3553(a) factor were sufficient to make any

Reer eee La ~

error harmless, district courts could disregard the

notice requirement with impunity.

3. Relying on the FMC report, the government

asserts that Mr. Irizarry’s decision to forego treat.

;

‘

. ͤ ree ee ee

ol ee

4. The government is correct that prejudice

depends on a showing that the party “would have

done things differently” with reasonable notice.

Himler, 355 F.3d at 742. Courts of appeals have

not hesitated to deem notice errors harmiess

where the party affected by the error fails to iden-

tify additional evidence or meaningfully different

argument sufficient to cast doubt on the sentence

imposed. United States u. McClung, 483 F.3d 273,

276-77 (4th Cir. 2007); United States v. Gilmore,

471 F.3d 64, 66 (2d Cir. 2006); United States v.

Meeker, 411 F.3d 736, 744 (6th Cir. 2005).

In this case, however, the lack of reasonable

notice had a substantial and injurious effect on

the sentence. Although there is no evidence that

Mr. Irizarry’s mental condition can be “cured,” see

J.A. 269, every expert report has indicated that it

is amenable to treatment. The FMC Report con-

cluded that Mr. Irizarry's violent and threatening

behavior following the end of his marriage is

“linked to his maladaptive personality traits,” and

“paranoid delusions may have played some role as

well.” FMC Report 14. It also found that medica-

tion and treatment “could diminish the intensity

of his paranoid ideations while helping to ad-

dress his “anxiety and depression d, see also

JA. 146 (Dr. Buigas’s testimony that available

ders); Bennett Report 5 (antipsychotic medica-

tions “may well improve” his “delusional think-

ing’). See United States v. Fancher, 513 F.3d 424,

431 (4th Cir. 2008) (failure to provide notice

prejudicial because “had he been aware of the

court's view that [the defendant} could not be re-

ee Se eee ee en oe eT a Se

1147 15

Hin

2712215

215255

TRE

Because a critical and questionable rationale

for the sentence went untested at the hearing, the

error cannot be ignored as harmless.

CONCLUSION

The judgment of the court of appeals should be

reversed and remanded for further proceedings.

Respectfully submitted,

ARTHUR J. MADDEN III

(Counsel of Record)

MADDEN & Soto

465 Dauphin Street

Mobile, AL 36602

(251) 432-0380

JONATHAN D. HACKER WALTER DELLINGER

HARVARD LAW SCHOOL MARK S. DAVIES

SUPREME COURT AND RYAN W. Scort*

APPELLATE ADVOCACY SuSAN M. Moss

CLINIC O'MELVENY & Myers LLP

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

Cambridge, MA 02138 Washington, DC 20006

* Admitted only in Illinois

April 8, 2008

2007 Sentencing Statistics

i 10 3 35

|i BHT) ail

10th Cir. ait 1 . 17.9%

°°

need seed coed ved al aan 1am

Source: U.S. Sentencing Commission, Final Year Quarterly

Data Report, Fiscal Year 2007 (Mar. 19, 2008), Table 2,

available at http:/Awww.ussc gov/sc_cases/ Quarter_Report_

Final_07 pdf.

Total Sentences excludes government-sponsored be-

low-range sentences. See Final Year Quarterly Daia Report,

Table 2 0.6. Percentages are based on this total.

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