United States v. Vega-Santiago

United States Court of Appeals
For the First Circuit
No. 06-1558
UNITED STATES OF AMERICA,
Appellee,
v.
MANUEL A. VEGA-SANTIAGO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella, Lynch, Lipez and Howard, Circuit Judges.
Mark S. Davies and Johnny Rivera-González, with whom Walter
Dellinger, Ryan W. Scott, and O'Melveny & Myers LLP were on
supplemental brief for appellant.
Vijay Shanker, U.S. Department of Justice, Criminal Division,
Appellate Section, with whom Rosa Emilia Rodríguez-Vélez, United
States Attorney, Nelson Pérez-Sosa, Assistant United States
Attorney, Chief, Appellate Division, and Thomas F. Klumper,
Assistant United States Attorney, were on supplemental brief for
appellee.
February 21, 2008
OPINION EN BANC
BOUDIN, Chief Judge. Manuel Vega-Santiago appealed from
his conviction on one count of armed carjacking, 18 U.S.C. §
2119(1) (2000), and two counts of related weapons offenses, id. §§
924(c)(1)(A), 922(k), asserting various trial errors. He also
appealed from his prison sentence of 240 months, which represented
an upward variance from the sentencing guidelines range of 177 to
191 months that would otherwise have applied to him.
A panel of this court affirmed Vega's conviction and
sentence, remanding only to correct a discrepancy between the
written and oral judgments. United States v. Vega-Santiago, ---
F.3d ---, 2007 U.S. App. LEXIS 25420 (1st Cir. Oct. 31, 2007). We
granted rehearing en banc to consider the panel's ruling that the
district judge must provide "notice" to litigants before imposing
a sentence outside the guideline range--a requirement that the
panel found satisfied in this case.
The facts in detail can be found in the panel opinion.
Vega, 2007 U.S. App. LEXIS 25420, at *2-*9. Pertinently, here the
district judge chose--pursuant to the sentencing regime established
by the Supreme Court, United States v. Booker, 543 U.S. 220 (2005);
see also United States v. Jimenez-Beltre, 440 F.3d 514 (1st Cir.
2006) (en banc)--to impose a sentence above the range applicable
under the sentencing guidelines. He did so after weighing the
sentencing factors outlined in 18 U.S.C. § 3553(a)--in particular,
the nature of the offense and the background of the offender.
-2-
Neither the presentence report nor the government's pre-hearing
submissions had suggested varying from the guidelines.
The question before us is whether a district court,
before sua sponte imposing a sentence outside the recommended
guideline range, must automatically provide advance notice to the
parties of its intent to do so and its contemplated reasoning. The
circuit courts being divided,1 the Supreme Court is now likely to
decide the issue, United States v. Irizarry, 458 F.3d 1208, 1212
(11th Cir. 2006), cert. granted, 2008 U.S. LEXIS 409 (Jan. 4, 2008)
(No. 06-7517), but until it does, district judges in this circuit
are entitled to guidance on an issue potentially present in every
sentencing. Our answer is that notice is sometimes, but not
always, required.
1
Five circuits have held that notice is required. United
States v. Anati, 457 F.3d 233, 237 (2d Cir. 2006); United States v.
Davenport, 445 F.3d 366, 371 (4th Cir. 2006); United States v.
Cousins, 469 F.3d 572, 580 (6th Cir. 2006); United States v. Evans-
Martinez, 448 F.3d 1163, 1164 (9th Cir. 2006); United States v.
Atencio, 476 F.3d 1099, 1104 (10th Cir. 2007).
Four have concluded to the contrary. United States v. Vampire
Nation, 451 F.3d 189, 195 (3d Cir. 2006); United States v. Mejia-
Huerta, 480 F.3d 713, 722 (5th Cir. 2007), petition for cert.
filed, 75 U.S.L.W. 3585 (Apr. 18, 2007) (No. 06-1381); United
States v. Long Soldier, 431 F.3d 1120, 1122 (8th Cir. 2005); United
States v. Irizarry, 458 F.3d 1208, 1212 (11th Cir. 2006), cert.
granted, 2008 U.S. LEXIS 409 (Jan. 4, 2008) (No. 06-7517); see also
United States v. Walker, 447 F.3d 999, 1006 (7th Cir. 2006)
(holding notice no longer required even for traditional
departures).
-3-
Much of the dispute among our sister circuits has
concerned the applicability of Federal Rule of Criminal Procedure
32(h). The rule provides that:
Before the court may depart from the
applicable sentencing range on a ground not
identified for departure either in the
presentence report or in a party's prehearing
submission, the court must give the parties
reasonable notice that it is contemplating
such a departure. The notice must specify any
ground on which the court is contemplating a
departure.
Prior to Booker, the guidelines were mandatory save for
"departures" that could be allowed by the district judge only in
accordance with rules imposed both by the governing statute and the
guidelines themselves. The term "departures" refers specifically
to just such deviations. Rule 32(h) speaks explicitly of
"departures," a term with a precise legal meaning. U.S.S.G. §
1B1.1 cmt. n. 1(E) (2007); United States v. Diaz-Villafane, 874
F.2d 43, 49 (1st Cir. 1989). Departures continue to be available
after Booker and it is to them that Rule 32(h) is addressed.
Booker has created new latitude for district judges by
permitting them to treat the guidelines as advisory and, after
calculating the guideline sentence (including any departure), to
impose a different sentence based on the broader criteria
identified in the statute. Such deviations have been variously
labeled--"variance" is one common term--but they are not
"departures" either in technical terminology or in common parlance.
-4-
On its face, Rule 32(h) cannot apply of its own force to variances,
a distinct concept developed after the rule was promulgated.
It is far from clear whether the drafters of the rule
would have included variances within the rule if they had then
existed, but it does not matter: a formal rule can be changed
through the statutorily prescribed rulemaking process, which
includes congressional oversight of proposed changes, but it cannot
be rewritten ad hoc by an individual judge or panel. "[A]
legislature says in a statute what it means and means in a statute
what it says there." Conn. Nat'l Bank v. Germain, 503 U.S. 249,
253-54 (1992). So, too, with formally adopted rules.
The more difficult question is whether the reasoning that
prompted Burns v. United States, 501 U.S. 129 (1991)--the decision
that Rule 32(h) codified--should be extended without qualification
to this new context to establish a judicially created rule
requiring automatic advance notice for variances. The Supreme
Court could, and might in the end, choose to do so. But this would
be an expansion of Burns' holding, which was specifically directed
to departures.2
2
The government, which has an obvious interest in obtaining
notice of contemplated downward variances, has reversed the
position it took before the panel and now insists that Rule 32(h)
does apply. But it imbues the notice requirement with such
flexibility as to whether and when notice must be given that its
position is ultimately quite different from Vega's.
-5-
The Court in Burns held that courts may not depart from
the guidelines if neither the presentence report nor the pre-
hearing submissions of the parties had requested such a departure,
unless reasonable notice is provided. That requirement was said to
be implicit in the demands of a federal rule giving parties the
right to comment on "matters relating to the appropriate
sentence."3 Without notice, the Court reasoned, counsel will be
unprepared to comment meaningfully on grounds for departure
proposed by the judge, resulting in a lack of adversarial testing.
Burns, 501 U.S. at 135.
There are competing arguments as to whether and how far
Burns and its rationales bear on variances; and the Supreme Court
will answer those questions in due course. But our view is that,
in this different context, adopting a mechanical rule would be a
mistake: it would not respond to the realities of a system in which
judges are afforded much broader discretion than in the recent
past, it would reinforce guideline sentencing, and it would
considerably complicate and prolong the sentencing process.
A bright-line advance notice requirement for potential
departures fit sensibly within the mandatory guideline regime in
place when Burns was decided. The guidelines provided for
departures, and articulated specific grounds upon which they can
3
This rule remains in force, Fed. R. Crim. P. 32(i)(C), but
reflects only a general policy on the right to comment and does not
specify at all whether and when notice of anything must be given.
-6-
(and cannot) be premised. E.g., U.S.S.G. §§ 4A1.3, 5K1.1-2.23.
Although in theory the possible grounds for departure were
unbounded, in practice they functioned almost as a set of auxiliary
guidelines. See United States v. Koon, 518 U.S. 81, 95-96 (1996)
("The court must bear in mind the Commission's expectation that
departures based on grounds not mentioned in the Guidelines will be
'highly infrequent.'").
Thus, departures presented a finite number of specific,
discrete (and often binary) determinations that would govern
departures and thus the ultimate sentence. It made sense to advise
the parties in advance of any proposed departure so as allow them
to dispute the facts critical to the departure and to assist the
court on pertinent legal questions.4 The premised facts were
reviewable for clear error; the legal rulings, fully reviewable.
18 U.S.C. § 3742(e). In short, departures looked much like the
customary fare of adversarial litigation.
Under Booker, Rita v. United States, 127 S. Ct. 2456(2007), and now Gall v. United States, 128 S. Ct. 586 (2007), the
sentencing inquiry, after calculating the guideline range, is far
more broad, open-ended and discretionary. Under Booker, the
district court must independently consider the statutory sentencing
4
Departures often required the judge to analyze not only the
guidelines, but also the policy statements of the Commission (which
were binding, Stinson v. United States, 508 U.S. 36 (1993)), and
the circuit law relating to appropriate and inappropriate grounds.
-7-
factors, 18 U.S.C. § 3553(a), which are phrased in very general
terms (e.g., "the nature and circumstances of the offense"; the
need for the sentence to "to reflect the seriousness of the
offense"). A variant sentence may then be imposed based on a
complex of factors whose interplay and precise weight cannot even
be precisely described.
The district judge draws on information from the trial,
the pre-sentence report and the parties' commentary, the
defendant's allocution, victims' statements, letters, its own
review of these materials before the sentencing hearing and
whatever is added during the hearing. Throughout the hearing, the
judge may well be revising his views depending on what is presented
and how counsel respond to questions. This is a fluid and dynamic
process and the court itself may not know until the end whether a
variance will be adopted, let alone on what grounds.
Yet in order to provide advance notice of any value, a
district court would have to advise not only that a variance is
possible but also the ground and reasoning behind it before he has
even heard the full presentation. This is very different than the
identification in advance of a particular ground of departure that
may or may not be invoked. "[R]equiring advance notice of 'any
ground' . . . would undoubtedly prove to be unworkable." United
States v. Vampire Nation, 451 F.3d 189, 197 (3d Cir. 2006).
-8-
Further, a mechanical requirement of such notice is
unnecessary. In the normal case a competent lawyer--and for
incompetence other remedies are available--will anticipate most of
what might occur at the sentencing hearing--based on the trial, the
pre-sentence report, the exchanges of the parties concerning the
report, and the preparation of mitigation evidence. Garden variety
considerations of culpability, criminal history, likelihood of re-
offense, seriousness of the crime, nature of the conduct and so
forth should not generally come as a surprise to trial lawyers who
have prepared for sentencing.
Were a mechanical notice rule imposed, some judges would
shy away from imposing non-guideline sentences that the parties had
not proposed in advance, increasing the "gravitational pull" of the
guidelines, United States v. Trujillo-Terrazas, 405 F.3d 814, 819
(10th Cir. 2005), and compromising the greater freedom sought by
Booker and Rita. See, e.g., Rita, 127 S. Ct. at 2465 (holding that
a district judge "does not enjoy the benefit of a legal presumption
that the Guidelines sentence should apply"). Alternatively, the
judge would often have to employ a burdensome two-stage regime,
explaining at the end of the first hearing his proposed sentence
and then conducting a follow-up hearing based on such notice.
The preferable solution is thus not a mechanical rule
mandating formal notice in every case where the judge may
conceivably vary from the guidelines. Rather, when proposing to
-9-
adopt a variant sentence relying on some ground or factor that
would unfairly surprise competent and reasonably prepared counsel,
a judge must either provide advance notice or, on request, grant a
continuance in order to accommodate a reasonable desire for more
evidence or further research. No formal rule is required for us to
adopt such a prudential policy as a matter of precedent.
In practice such cases of unfair surprise, probably rare,
are not that hard to identify; and this case is not one of them.
Here, the district judge relied primarily on three particular
details of the crime--that it involved the invasion of a home,
death threats and a near-miss firing of a gun--and that Vega had
been previously arrested (but not convicted) on charges of violent
crime. The details of the crime were well known to counsel; and
Vega had admitted his prior "brushes with the law" which were noted
in the pre-sentence report.5
Defense counsel may not have anticipated that the
district judge would rely upon those particular facts to impose an
above-guideline sentence, but having that knowledge in advance
would not have made any obvious difference. The facts themselves
were familiar and undisputed, so there is no concern here that
5
Vega points out that the district judge agreed to strike that
portion of the PSR at the start of the sentencing hearing. But, as
the judge explained when delivering the sentence, it was removed
only because Vega's counsel was concerned that the Bureau of
Prisons would use it to "jack up his security level." The truth of
the admission was not contested.
-10-
counsel might have been able, with notice, to challenge them. And
nowhere else in the law is the judge required to explain his
reasoning before counsel have argued to him.
In granting rehearing en banc we invited supplemental
briefing not only on the panel's automatic notice requirement but
on whether there was unfair surprise in this case. Defense counsel
have added new arguments to those earlier presented to the panel.
But we agree with the panel's original view that unfair surprise
has not been established. At sentencing defense counsel had ample
opportunity and incentive, without any advance notice of a possible
variance, to make the same arguments now offered to us.
First, Vega submits that mitigating evidence about his
family circumstances could have been offered. But mitigating
evidence would have been relevant to sentencing with or without a
variance from the guideline range. The principal factor cited, the
death of Vega's father shortly before the crime, was readily
detectable by counsel and potentially useful to argue for a lower
sentence within or (under Booker) below the guideline range.
Next, Vega contends that a carjacking that involves
invading a home is no worse, for purposes of the section 3553(a)
factors, than an ordinary carjacking. We fail to see how further
notice was necessary in order to prepare that argument about the
seriousness of the offense facts--a typical sentencing
consideration. Comparing and contrasting a defendant's particular
-11-
crime to its "heartland" prototype is always relevant. That the
judge might think that a home invasion carried an extra sense of
menace is hardly a surprise.
Finally, Vega says that the death threat and firing of
the gun were already taken into account by the guidelines, and that
with more notice, defense counsel would have been prepared to point
that out. But a factor that is worked into the guideline calculus
may still be considered by a district judge in the section 3553(a)
analysis. See, e.g., United States v. Scherrer, 444 F.3d 91, 93-94
(1st Cir. 2006) (en banc), cert. denied, 127 S. Ct. 927 (2007).
Anyway Vega's counsel did emphasize--without requiring any special
notice--that the enhancements provided in the guidelines were
sufficient. The district judge simply did not agree.
Parts I, II, III(A), and III(C) of the panel opinion are
reinstated; Vega's conviction and sentence are affirmed; and the
case is remanded for correction of the written judgment.
It is so ordered.
Dissents follow.
-12-
TORRUELLA, Circuit Judge (Reserving and Dissenting).
The circumstances that force me to state my views at this time
leave me no alternative but to partially emulate Justice Felix
Frankfurter's response to similar constraints, about which he
stated:
Time is required not only for the
primary task of analyzing in detail the
materials on which the Court relies. It is
equally required for adequate reflection upon
the meaning of these materials and their
bearing on the issues now before the Court.
Reflection is a slow process. Wisdom, like
good wine, requires maturing.
Moreover, the judgments of this Court
are collective judgments. They are neither
solo performances nor debates between two
sides, each of which has its mind quickly made
up and then closed. The judgments of this
Court presuppose full consideration and
reconsideration by all of the reasoned views
of each. Without adequate study there cannot
be adequate reflection. Without adequate
reflection there cannot be adequate
deliberation and discussion. And without
these, there cannot be that full interchange
of minds which is indispensable to wise
decision and its persuasive formulation.
The circumstances being what they are,
I am forced, deeply as I regret it, to reserve
for a later date [the full] expression of my
views.
Reid v. Covert, 351 U.S. 489, 492 (1956) (Frankfurter, J.,
reserving).
This solution is, of course, hardly a satisfactory one,
as it would leave me, an active member of this Court, without an
effective voice and vote at a crucial juncture in this proceeding
-13-
-- a result which affects the substantive rights of the parties to
this appeal. I believe that the parties are entitled to the
benefit of my views, even if they are considered to be in error by
some of my colleagues.
Although I am in substantial agreement with the views
expressed by Judge Lipez in his excellent dissent, I am also deeply
concerned by the serious policy, procedural, and substantive issues
raised by the unwarranted haste which has characterized this en
banc proceeding. Accordingly, I must state my views, even if in a
preliminary and incomplete fashion.
The convocation of this particular en banc proceeding
highlights the whimsical and uneven manner in which this circuit
often applies the rehearing rules. Indeed, both the granting and
denying of petitions for these extraordinary proceedings evince a
double-standard with respect to which issues are deemed meritorious
of such review. See, e.g., Cerqueira v. American Airlines, No. 07-
1824 (1st Cir. XXXX) (Torruella, J. dissenting). Time constraints
do not allow for an exhaustive inventory of this asseveration, but
the circumstances of this present appeal demonstrate one such
example.
In this case, before either the appellant or the appellee
had the opportunity to seek en banc review, the court undertook a
rather unusual procedure and ordered en banc rehearing sua sponte.
The appeal thus metamorphosed into one more relevant to, and
-14-
reflective of, a judicially fueled agenda. That agenda became
evident in light of the Government's own change of heart: both
sides now agree that Rule 32(h) applies to post-Booker variances.
Furthermore, the issue for which the en banc court was convened is
presently before the Supreme Court, see United States v. Irizarry,
458 F.3d 1208 (11th Cir. 2006), cert. granted, 128 S. Ct. 828(2008), and will most likely be decided in a definitive way before
June. At a minimum, circumstances would seem to counsel awaiting
the decision of the Supreme Court rather than unnecessarily
investing our limited judicial resources on this one.
In any event, I am opposed to the majority's disregard
for the unequivocal language of Rule 32(h) and the clear mandate of
the Supreme Court in Burns v. United States, 501 U.S. 129 (1991).
Specifically, in Burns, the Court observed that the purpose of Rule
32 was to promote "focused, adversarial resolution of the legal and
factual issues." Id. at 137. The Court recognized that in the
absence of notice, parties would make arguments "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" or, worse yet, "the parties [may] not even try to
anticipate such a development," and leave the contemplated grounds
untested by the adversarial process. Id.The majority's opinion substitutes these requirements
with what is, in effect, an unauthorized rule-making amendment to
-15-
Rule 32 by this court. The majority has concocted a vague standard
for pre-sentence notice which will inevitably lead to interminable
litigation as to what a "competent and reasonably prepared counsel"
would have anticipated. Slip Op. at 10. This will undoubtedly
have the effect of causing more delay and a greater waste of
judicial resources than the occasional continuance forecast by the
majority's opinion were the Rule 32 standard to be followed. See
Slip Op. at 8. The fact is that such continuances might be
necessary in only a handful of cases.6 In any event, the
postponement of sentencing is a minor inconvenience to the judicial
system when weighed against the basic due process protections
afforded by the Rule 32 notice requirements. See Burns, 501 U.S.
at 138 (noting that "were we to read Rule 32 to dispense with
notice, we would then have to confront the serious question whether
notice in this setting is mandated by the Due Process Clause"
(emphasis added)). I dissent.
6
Of the federal post-Booker cases, only 1.5% of cases had
sentences above the Guidelines and only 11.9% were below (53.5% of
which arose in the five circuits which already require the Rule 32
notice). See U.S. Sentencing Comm'n, 4th Quarter Report (2006),
available at
http://www.ussc.gov/sc_cases/Quarter_Report_4th_07.pdf.
-16-
LIPEZ, Circuit Judge, dissenting. I respectfully dissent
from the majority's conclusion that the reasonable notice required
by Burns v. United States, 501 U.S. 129 (1991), and Federal Rule of
Criminal Procedure 32(h) is inapplicable to Guidelines variances.
The majority's rejection of a reasonable notice requirement in
favor of a new standard based on whether "some ground or factor
. . . would unfairly surprise competent and reasonably prepared
counsel" leaves district court judges without the very guidance
the majority purports to offer them. Indeed, the government now
also agrees that the reasonable notice required by Burns and Rule
32(h) must apply to Guidelines variances to ensure full adversarial
testing of the issues related to sentencing.
Moreover, having further considered the issue in the
context of en banc briefing and argument, I have become convinced
that the reasonable notice requirement means notice of a possible
variance being contemplated by the judge in advance of the
sentencing hearing. Such prehearing notice is most consistent with
Rule 32's directive that parties be given the opportunity to
comment on matters "relating to an appropriate sentence." Fed. R.
Crim. P. 32(i)(1)(C). This rule does not mean that every failure
to give prehearing notice will require a new proceeding. Such
errors lend themselves to harmless error review. In this case,
however, I cannot find that the error was harmless, and I therefore
-17-
would vacate Vega's sentence and remand for a new sentencing
hearing.
I.
My conclusion that notice may be deemed "reasonable" only
if given in advance of the sentencing hearing is informed by
multiple considerations. Most importantly, the interest at stake
for the defendant – the length of incarceration – could not be more
critical, even when the potential difference in a defendant's
sentence would be "merely" a matter of months. Whether or not the
Due Process Clause is implicated,7 the defendant's opportunity to
comment meaningfully when a court contemplates a sentence outside
the Guidelines is of utmost importance.
It also is significant, as the panel opinion observed,
that implicit in Burns and Rule 32(h) "is the understanding that
Rule 32(h) notice would serve as an alternative to the forms of
prehearing notice expressly referenced" in the rule, i.e., the
presentence report or a party's prehearing submission. United
States v. Vega-Santiago, --- F.3d ---, 2007 U.S. App. LEXIS 25420(1st Cir. Oct. 31, 2007), at *38 (emphasis in original). Thus, a
rule of pre-hearing notice is more consistent with the principles
7
The Supreme Court noted in Burns that its construction of
Rule 32 avoided "the serious question whether notice in this
setting is mandated by the Due Process Clause." 501 U.S. at 138.
-18-
articulated in Burns and incorporated into Rule 32.8 To require
counsel to respond off-the-cuff to a previously unannounced
rationale for a non-Guidelines sentence is to deny the very period
of deliberation that "notice" is intended to guarantee. Even when
competent counsel is familiar with all of the facts of the crime
and the general principles of sentencing law, he or she may not
immediately appreciate their relevance to the proposed variance
from the Guidelines. Accord United States v. Calzada-Maravillas,
443 F.3d 1301, 1304 (10th Cir. 2006) (observing that the "key
component" of the notice requirement is "notice in advance of the
sentencing hearing").
In addition, a bright-line rule of prehearing notice
would provide unambiguous direction to both the parties and the
court, with minimal burden. We must keep in perspective the small
number of cases at issue here. At the en banc oral argument, the
government represented that, in most instances, departures or
variances are either proposed by the Probation Department in the
presentence report or requested by one of the parties. This
understanding that sua sponte variances by the court occur
infrequently informed the conclusion reached by the original panel,
which included an experienced district court judge. It will be the
8
I am, of course, well aware that Rule 32(h) applies by its
terms only to sentencing departures. It is the principles of
Burns, which are reflected in Rule 32(h), that make the notice
requirement equally applicable to sentencing variances.
-19-
exceptional occasion when a court must provide its own prehearing
notice of a contemplated ground for a variance; in such instances,
the court would be able to alert the parties with a brief written
order. A continuance would be necessary even more rarely, when a
rationale for a variance first arises at the sentencing hearing.
Moreover, requiring that notice be given as a matter of
course before the hearing reduces the possibility that the court
will be blind-sided by a party's last-minute attempt to secure a
non-Guidelines sentence. The judge is obviously in a better
position to evaluate the merits of a variance if it is proposed in
advance. With a rule of advance notice, the government and
defendant will have greater incentive to present all arguments for
a non-Guidelines sentence in their prehearing submissions,
facilitating sentencing proceedings that most fairly take into
account all relevant considerations.
However, even a rule of advance notice will not eliminate
some questions of reasonableness. The content of the notice and
its timing in relation to the date of the hearing and the issues to
be addressed are elements of reasonableness. As for content, the
panel opinion pointed to the requirement in Burns that the notice
"specifically identify the ground on which the district court is
contemplating an upward departure." 501 U.S. at 138-39. A similar
requirement should apply to a contemplated variance. Any less
exacting requirement would impose on the parties "the burden of
-20-
guessing the particular grounds on which the court might choose to
increase [or decrease] the sentence." Vega-Santiago, --- F.3d at
---, 2007 U.S. App. LEXIS 25420, at *36.
As for timing, reasonableness will depend on whether the
parties were given sufficient opportunity to prepare meaningful
comment on the previously unannounced ground for deviating from the
Guidelines. If addressing the court's contemplated rationale would
require minimal legal research or investigation of facts, a brief
period of time would be adequate. But if, for example, the court
announced that it might rely on mitigation evidence presented in
letters submitted by multiple individuals, the parties might need
time to review the submissions and conduct further investigation.
In such circumstances, reasonable notice would have to be given far
enough in advance of the hearing to accommodate such preparation.
Regardless of the complexity or novelty of the court's
sua sponte rationale, at least some advance warning is crucial to
ensure the most effective advocacy and, in turn, "the thorough
adversarial testing contemplated by federal sentencing procedure,"
Rita v. United States, 127 S. Ct. 2456, 2465 (2007). Other
circuits also have explicitly adopted this view. See, e.g., United
States v. Cole, 496 F.3d 188, 191 (2d Cir. 2007) ("[N]otice given
during the course of the sentencing hearing and put into effect
less than two hours later was insufficient."); United States v.
Flanders, 491 F.3d 1197, 1220 (10th Cir. 2007) (finding that the
-21-
court's announcement on the first day of sentencing that it might
impose a non-Guidelines sentence was "plainly insufficient under
Rule 32(h)").
A failure to provide reasonable notice will not always
require resentencing. In some cases, the reviewing court may be
satisfied that lack of proper notice was harmless because it would
not have placed the defendant in a position to comment more
effectively on the proposed variance. Where, for example, counsel
had the opportunity to provide a thoughtful response to the court's
rationale for a variance and where the defendant on appeal offered
no additional rebuttal to the court's rationale, it would be
appropriate to conclude that the lack of notice was harmless. If,
however, a defendant identifies plausible rebuttals to the court's
rationale that could have been made if counsel had been given time
to prepare, the principles of Burns require resentencing.
Otherwise, "a critical sentencing determination will go untested by
the adversarial process contemplated by Rule 32 and the
Guidelines." Burns, 501 U.S. at 137.
The harmless error analysis addresses many of the same
considerations that were included in the panel's favorable
evaluation of the reasonableness of the notice provided near the
outset of the sentencing hearing in this case. However, for the
reasons stated, I now conclude that the better approach is to make
advance notice the rule and to engage in harmless error review when
-22-
the rule is violated. As I explain in the following section, the
error in this case was not harmless.
II.
As soon as the government proposed at Vega's sentencing
hearing that the court go beyond the Guidelines term of 57 to 71
months, his counsel protested that the defense should have been
advised in advance "so it can be prepared to rebut these
arguments." The court disagreed that notice was required, heard
testimony from the victims, and explained that the crime warranted
a higher sentence because, inter alia, it involved a home invasion
with a shooting and was therefore "not a regular car jacking."
Counsel unsuccessfully argued in response that the presentence
report and the Guidelines recommendation took the particular facts
of the crime into account. In announcing the sentence, the court
referred to defendant's "invad[ing] the privacy of a home in the
middle of the night," the victim's plea for mercy, and the
discharge of the weapon.
In his en banc brief, Vega offers several arguments that
could have been made at the sentencing hearing if counsel had
received advance notice that the court was contemplating a variance
based on the specific details of the offense:9
9
Although these arguments were not made to the panel, I deem
it appropriate to consider them on en banc review because we
specifically invited argument on the notice issue.
-23-
! In response to the court's concern that the
carjacking was unusual because it involved a
home invasion that caused serious
psychological injury to the victims, counsel
could [have] challenged the veracity of the
victims' claims of paralyzing fear, noting
that [the victim] responded to the robbery by
getting a gun, firing 13 shots at Mr. Vega-
Santiago as he drove away on a public street,
and then reloading and "go[ing] after the
defendant" with his friend in an SUV. Counsel
also could have argued that being robbed and
fired upon by an armed gunman in any location
causes serious emotional trauma, and that the
marginal cost of enduring the crime at home,
as opposed to numerous other private
locations, does not justify a variance from
the guideline range.
! In response to the court's reliance on the
shot fired during the robbery, counsel could
have pointed out that the mandatory
consecutive sentence on Count Two already
reflected a three-year increase because "the
firearm [was] discharged" rather than merely
"brandished." Compare 18 U.S.C. §
924(c)(1)(A)(iii) (ten-year mandatory
minimum), with 18 U.S.C. § 924(c)(1)(A)(ii)
(seven-year mandatory minimum).
! In response to the court's reliance on the
death threat and pleas for mercy, counsel
could have explained the effect of the
guideline adjustment for death threats,
U.S.S.G. § 2B3.1(b)(2)(F), which was applied
in this case, and could have reminded the
court of "the need to avoid unwarranted
sentence disparities among defendants with
similar records who have been found guilty of
similar conduct," 18 U.S.C. § 3553(a)(6).
Appellant's En Banc Brief at 21-22 (citations omitted).
These arguments, which directly challenge the need for a
non-Guidelines sentence to meet the court's objectives, are neither
frivolous nor tangential to the court's reasoning. We cannot know
-24-
their impact on the court if counsel had had the opportunity to
present them at the sentencing hearing. The court expressed
concern that Vega's sentence "reflect how serious this offense
was." Although defense counsel argued at the hearing that the
Guidelines sentencing range would accomplish that purpose, the
brief adds specific content, supported by authority, to the more
general argument that the Guidelines already accounted for the
facts that bothered the judge. It is precisely this sort of
developed presentation by counsel, reinforced by legal and factual
references, that is denied a defendant who is not given advance
notice of the court's contemplated grounds for a non-Guidelines
sentence. Moreover, in its explanation for the sentence, the court
also referred to Vega's admission that he had "previous brushes
with the law which included violent crime allegations for which he
was not convicted" – a basis for deviating that the court had not
previously mentioned and for which, therefore, no notice was
provided.
Where, as here, a defendant demonstrates that lack of
notice deprived him of "full adversary testing of the issues
relevant" to his sentence, Burns, 501 U.S. at 135, the error cannot
be deemed harmless and a remand for resentencing is necessary.
III.
The majority predicts that "a mechanical notice rule"
would cause undesirable consequences. In their view, it would
-25-
cause judges to "shy away from imposing non-guideline sentences
that the parties had not proposed in advance," or, alternatively,
"the judge would often have to employ a burdensome two-stage
regime." Neither of these assertions has merit.
A. Multiple Proceedings
The majority's concern that an advance notice rule would
often require a two-stage sentencing process reveals a fundamental
misunderstanding of the sentencing process. My colleagues appear
to believe that a judge enters the courtroom for a sentencing
hearing with little sense of the sentence he or she intends to
impose or the factors that will affect that sentence. They assume
that these factors will become apparent only during the course of
the hearing and that, if notice is required for a decision to
deviate from the Guidelines, many variances will require a
continuance and second hearing.
That concern is at odds with reality. While the majority
may be correct that a judge will not make a final sentencing
decision until the end of the hearing, and "may well be revising
his views depending on what is presented and how counsel respond to
questions," the judge will arrive at that hearing after a review of
the presentence report and other relevant materials. He or she
will already have a developed view of what the appropriate sentence
is, including its length. To be sure, the judge's views may be
altered by what he or she hears at the hearing. But a judge will
-26-
almost always have considered in advance of the hearing whether an
upward or downward variance is appropriate. To suggest less
forethought on the part of the sentencing judge is to suggest that
the judge enters the hearing unprepared.
In other words, the ultimate decision to deviate from the
Guidelines – made at the conclusion of the sentencing hearing,
after adversary testing of the issues – should not be confused with
the earlier inclination – developed before the hearing – to focus
attention on particular factors that might warrant such a
deviation. The notice required by Rule 32(h) is not that a court
will impose a variance, but only that it is considering factors
that may justify a variance. Hence, it would pose no burden for
the court to provide notice in advance of the hearing that such a
variance is contemplated. In those few instances where the court's
inclination to impose a variance is based on a factor or factors
raised for the first time at the hearing, the principles of Burns
and Rule 32(h) require the court to provide sufficient notice to
enable both the defendant and the government to consider, research
and thoughtfully respond to the new ground. In that case a
continuance of the sentencing hearing would be required. Such
continuances would be a small price to pay for the fairness to all
parties of the advance notice requirement.
-27-
B. The Role of the Guidelines
The notion that a rule of advance notice would
inappropriately incline judges toward the Guidelines is also
seriously flawed. In multiple cases this term, the Supreme Court
has explicitly confirmed that the Guidelines remain a central part
of the sentencing process post-Booker. The Guidelines are "the
starting point and the initial benchmark" for sentencing decisions,
Gall v. United States, 128 S. Ct. 586, 596 (2007), entitled to
"respectful consideration," Kimbrough v. United States, 128 S. Ct.
558, 570 (2007), because "in the ordinary case, the [Sentencing]
Commission's recommendation of a sentencing range will 'reflect a
rough approximation of sentences that might achieve § 3553(a)'s
objectives,'" id. at 574 (quoting Rita, 127 S. Ct. at 2465). See
also United States v. Jiménez-Beltre, 440 F.3d 514, 518 (1st Cir.
2006 (en banc) (holding that the district court normally should
begin with a Guidelines calculation).
The majority does not dispute the continuing centrality
of the Guidelines to the sentencing process. Indeed, they
acknowledge the Guidelines' "gravitational pull." They worry,
however, that an advance notice requirement will increase the
Guidelines' pull on district court judges and hence could
compromise the changes in the sentencing process effected by the
Supreme Court in Booker and its progeny. The suggestion that
district court judges would shy away from sua sponte variances as
-28-
a matter of convenience is misguided. It is inconceivable to me
that, having given the Guidelines due consideration and finding
them lacking, a judge would suppress the independent judgment
required by the Supreme Court simply to avoid providing the parties
with reasonable prehearing notice. The modest burden of preparing
a brief notice or, in the rare case, continuing an already convened
sentencing hearing to a later date would not deter a judge from
imposing a variance.
Rather than justifying less notice, the broader
sentencing discretion afforded to district judges post-Booker
requires that defendants be given the same advance warning of the
court's contemplated rationale for deviating from the Guidelines
that Burns required for sentencing departures. As the panel
opinion observed, the need for notice remains acute because of the
virtually limitless number of factors that may be used to support
a variance. Although notice under Rule 32 is owed to both the
defendant and the government, the defendant's interest in preparing
the most persuasive argument available against an upward variance
is obviously of particular significance. Defendants should not be
placed in the untenable position of "trying to anticipate and
negate every conceivable ground on which the district court might
choose to depart on its own initiative" or risk allowing "a
critical sentencing determination [to] go untested by the
adversarial process." Burns, 501 U.S. at 137.
-29-
The majority acknowledges that there are some cases
where, as a matter of fairness, notice must be provided. But the
majority's proposed approach – providing notice or granting a
continuance when the court proposes to rely on a ground that would
"unfairly surprise competent and reasonably prepared counsel" – has
at least three serious flaws. First, it gives no guidance at all
to district judges. Without an anchor in either the Due Process
Clause or a bright-line rule, the majority's standard offers
sentencing judges no framework within which to evaluate the need
for notice. Fairness, surprise and reasonable preparation are all
elusive concepts that individual judges will see differently.
Second, the ambiguity of the standard leaves every non-
Guidelines sentence that was imposed without notice open to
challenge on appeal. Surprise arguably exists any time the court
announces, for the first time at the sentencing hearing, its sua
sponte intention to deviate from the Guidelines, and surprise will
rarely be deemed "fair" by a defendant who has a right, under Rule
32, to comment on matters affecting the length of his
incarceration. See Fed. R. Crim. P. 32(i)(1)(C). Debate over what
it means for counsel to be "reasonably prepared" for a sentencing
hearing surely will consume more judicial time than judges would
expend in giving prehearing notice. Moreover, the standard is so
vague that appellate courts could rarely, if ever, conclude that
the sentencing court had erred.
-30-
Third, the majority suggests that most cases would not
involve unfair surprise because courts typically would base
variances on "[g]arden variety considerations" such as the
likelihood of recidivism or the seriousness of the crime. But the
commonality of such factors is not the issue. What matters is how
the court is processing all of the information relevant to those
factors and its inclination to take an exceptional view of them.
In the absence of advance notice, neither the defendant nor the
government has reason to anticipate that the usual factors may lead
to a non-Guidelines sentence, and advocating for a lower sentence
or higher sentence within a Guidelines range is not the same as
advocating against the court's inclination to sentence outside the
Guidelines. That difference is reflected in the new arguments
asserted in Vega's en banc brief, which specifically emphasize why
the court's concerns did not require a sentence beyond the
Guidelines.
In sum, an easily administered bright-line rule requiring
advance notice in all cases would promote both actual fairness in
sentencing and "the perception of fair sentencing," Gall, 128 S.
Ct. at 597, without undue burdens on the courts. The Supreme Court
already has recognized the need for a reasonable notice requirement
in the context of departures. In the post-Booker era, when the
court has broader discretion to go outside the Guidelines, notice
remains a critical component of the defendant's right to
-31-
meaningfully comment on the appropriateness of a non-Guidelines
sentence. I therefore respectfully dissent.
-32-