United States v. Atencio

PU BL ISH

UNITED STATES COURT O F APPEALS

TENTH CIRCUIT

U N ITED STA TES O F A M ER ICA,

Plaintiff - Appellee,
No. 05-2279
v.
(D.N.M No. CR -05-662 JP)
H A RRIS A TEN CIO ,

Defendant - Appellant.

OR DER DENY ING INITIAL EN BANC REVIEW
Filed January 17, 2007

Before TA CH A, Chief Judge, KELLY, HENRY, BR ISC OE, LUCERO,
M U RPH Y, HA RTZ, O’BRIEN, M cCO NNELL, TYM KOVICH, GORSUCH,
and HO LM ES, Circuit Judges.

A member of the active court sua sponte called for a poll of the court to

determine whether this case would be set for initial en banc review. Judges

Tacha, Kelly, Briscoe, M urphy, Tymkovich and Gorsuch voted to grant initial en

banc review . All other active members of the court voted to deny. A majority

vote being necessary to order en banc consideration, initial en banc consideration

is denied.

Entered for the Court
Elisabeth A . Shumaker, Clerk

By:
Deputy Clerk
No. 05-2279, United States v. Atencio

M U RPH Y, Circuit Judge, dissents to the denial of initial en banc consideration

by the court with opinion. The opinion is joined by KELLY and BR ISC OE,

Circuit Judges:

In United States v. Booker, the Supreme Court held that the United States

Sentencing Guidelines were incompatible with the Sixth Amendment. 543 U.S.

220, 230-37, 244 (2005). To remedy this incompatibility, the Court excised from

the Sentencing Reform Act of 1984 those provisions of the Act that made the

Guidelines mandatory. Id. at 245-46, 258-65. So modified, the Sentencing

Reform Act of 1984 “makes the G uidelines effectively advisory. It requires a

sentencing court to consider Guideline ranges, but it permits the court to tailor the

sentence in light of other statutory concerns as well, see [18 U.S.C.] § 3553(a).”

Id. at 245-46 (citation omitted); see also United States v. Bullion, 466 F.3d 574,

575 (7th Cir. 2006) (“[T]he standard of reasonableness, introduced by the Booker

decision, confers broad sentencing discretion. The judge must consider the

guidelines, but is in no sense bound by them . He is bound only by the statutory

sentencing factors, 18 U.S.C. § 3553(a), which are both numerous and vague,

giving the judge a great deal of running room.”).

This court has previously paid lip service to the notion that, following

Booker, district courts possess substantial discretion in sentencing under the now -

advisory Guidelines. See United States v. Andrews, 447 F.3d 806, 811-12 (10th

Cir. 2006). Nevertheless, as I have previously noted, serious tension exists
between this court’s post-Booker precedents regarding appellate review of

sentences and that portion of Booker holding that the Guidelines are no longer

mandatory. United States v. M ateo, No. 05-2266, 2006 W L 3775864, at *9-*10

(10th Cir. Dec. 26, 2006) (M urphy, J., joined by Kelly, J., concurring). W ith the

filing today of the panel opinion in United States v. Atencio, No. 05-2279, there

has been a profound escalation in that tension. Under Atencio, the ability of

district courts to exercise true discretion and vary from the range set out in the

advisory Sentencing Guidelines is subject to significant and unwarranted

procedural impediments, thereby threatening the very discretion mandated by

Booker. Because the procedural impediments imposed on the district courts by

Atencio are inconsistent with Booker, are not supported by case law or other

governing authority, and are bad policy, I respectfully dissent from the denial of

initial hearing en banc. See Fed. R. App. P. 35 (providing for hearing or

rehearing en banc in cases involving questions of exceptional importance).

Atencio imposes two significant procedural requirements on the imposition

of a sentence outside the range set out in the advisory Sentencing Guidelines.

First, a district court must provide pre-hearing notice, pursuant to Federal Rule of

Criminal Procedure 32(h), of its intent to vary from the advisory range set out in

the Guidelines, which notice must identify each and every ground the district

court is considering in support of such a sentence. Atencio, No. 05-2279, slip op.

at 7-12 (10th Cir. Jan. __, 2007). Second, to support any variance from an

advisory Guidelines range, a district court must undertake a detailed analysis of

2
the propriety of the variance, with specific reference to the factors set out in 18

U.S.C. § 3553(a). Atencio, No. 05-2279, slip op. at 14-19. Each of these

procedural limitations is inconsistent with the post-Booker scheme; each

occasions a significant, untoward burden on the district courts in this Circuit.

According to Atencio, the requirement of detailed and specific pre-hearing

notice in every case in which the § 3553(a) factors might justify a sentence

outside the advisory range is supported by Federal Rule of Criminal Procedure

32(h) and Burns v. United States, 501 U.S. 129 (1991). Atencio, No. 05-2279,

slip op. at 7-11. Neither of these authorities is helpful, however, inasmuch as

each addresses a specific pre-Booker phenomenon: unexpected “departures”

“from a generally binding Guidelines range based on information not contained in

the presentence report or the parties’ sentencing submissions.” United States v.

Walker, 447 F.3d 999, 1007 (7th Cir. 2006).

Rule 32(h) by its plain language applies only to “departures,” a distinct

sentencing mechanism that continues to apply post-Booker. United States v.

Dozier, 444 F.3d 1215, 1217-18 (10th Cir. 2006). 1 As the Atencio panel

1
The Federal Rules of C riminal Procedure provide as follow s:

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.

(continued...)

3
recognizes, however, what is at issue in this case is not a “departure” from a

mandatory Guidelines range. Atencio, No. 05-2279, slip. op. at 9-10. Instead,

this case involves a sentence outside an advisory Guidelines range based on a

balancing of the sentencing factors set out in § 3553(a), a sentencing option

comm only labeled a “variance.” Id. at 10. Because, as the Atencio panel

recognizes, “departures” and “variances” are analytically distinct, and because

Rule 32(h) does not refer to “variances,” it is quite odd for the Atencio panel to

conclude district courts must comply with the dictates of Rule 32(h) before

“varying” from the advisory Guidelines range. Indeed, the Atencio panel’s

imposition of a notice requirement in the circumstances of this case seems more

akin to rulemaking than adjudication of the meaning of Rule 32(h).

Nor does the Supreme Court’s decision in Burns support imposition of a

notice requirement on district courts in the circumstances of this case. The

prefatory portion of Burns notes it is entirely based on the “revolution[ary]” and

“mechanical” nature of Guideline sentencing. 501 U.S. at 132-35. 2 Because of

1
(...continued)
Fed. R. Crim. P. 32(h) (emphasis added).
2
In this regard, the Supreme Court noted:

The Sentencing Reform Act of 1984 revolutionized the manner
in w hich district courts sentence persons convicted of federal crimes.
See generally M istretta v. United States, 488 U.S. 361, 363-367
(1989). Before the Act, Congress was generally content to define
broad sentencing ranges, leaving the imposition of sentences w ithin
those ranges to the discretion of individual judges, to be exercised on
(continued...)

4
the unique changes to sentencing occasioned by the Sentencing Reform Act of

1984, the Court in Burns concluded “procedural reforms,” including specific,

advanced notice of an intent to depart, were necessary to fully implement a

mandatory Guidelines scheme. Id. at 133, 138-39.

The considerations that drove the decision in Burns are now mere history

after the decision in Booker. In the Booker aftermath, sentencing has returned to

the less formal practice that existed prior to the Sentencing Reform Act of 1984.

Bullion, 466 F.3d at 575; cf. Burns, 501 U.S. at 133 (“‘In pre-guidelines practice,

factors relevant to sentencing were often determined in an informal fashion. The

informality was to some extent explained by the fact that particular offense and

offender characteristics rarely had a highly specific or required sentencing

consequence.’” (quoting U.S.S.G. § 6A1.3, official commentary)). In the post-

Booker world, all parties are inherently on notice that (1) the once-mandatory

Guidelines are now advisory, and (2) any deviation from the Guideline range will

2
(...continued)
a case-by-case basis. Now, under the “guidelines” system initiated
by the Act, district court judges determine sentences based on the
various offense-related and offender-related factors identified by the
Guidelines of the United States Sentencing Commission. See 18
U.S.C. §§ 3553(a)(4), (b). . . . The only circumstance in which the
district court can disregard the mechanical dictates of the Guidelines
is when it 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 . . . .” 18 U.S.C.
§ 3553(b).

Burns v. United States, 501 U.S. 129, 132-33 (1991).

5
be premised on at least one of the factors listed in § 3553(a). Accordingly,

criminal defendants can claim no surprise as to the facts upon which a district

court will rely to vary from the Guidelines. Thus, Burns simply does not support

the Atencio panel’s imposition of a notice requirement to situations in which a

district court determines the § 3553(a) factors dictate a sentence outside the

advisory Guidelines range.

Nor is the rule set out in Atencio good policy. The result will be delay and

needless additional expense. Sentencing judges normally schedule sentencing

hearings at the time of conviction, whether by verdict or plea. For many good

reasons, district court judges frequently prepare for sentencing hearings w ithin

days of the hearing, not weeks. This newly proposed notice requirement will

likely have one of two consequences: (1) trial judges w ill be required to prepare

for sentencing hearings many weeks beforehand; or (2) sentencing will proceed in

two stages in all cases where the judge might possibly consider a sentence outside

the range based on the factors set out in § 3553(a). M oreover, trial judges may

begin requiring the parties to submit extensive pre-sentence memoranda in many,

if not most, cases well before the sentencing hearing and address therein every

possible aggravating and mitigating factor. As a consequence, this new notice

requirement may very well slow down and complicate the sentencing process

which, post-Booker, should be simpler and more informal.

Equally at odds with the sentencing discretion returned to district courts by

Booker is the Atencio panel’s new requirement that to support a “variance” the

6
district court must specifically explain, with reference to the factors set out in §

3553(a) w hy the “variance” is appropriate. Atencio, No. 05-2279, at 14-19. This

court has previously indicated that at sentencing a district court need not “march

through § 3553(a)’s sentencing factors,” nor does this court “demand that the

district court recite any magic w ords to show that it fulfilled its responsibility to

be mindful of the factors that Congress has instructed it to consider.” United

States v. Rines, 419 F.3d 1104, 1107 (10th Cir. 2005) (quotation omitted); see

also United States v. Kelley, 359 F.3d 1302, 1305 (10th Cir. 2004) (holding that

this court does not require any kind of “ritualistic incantation” on the part of the

district court to establish its consideration of a legal issue (quotation omitted)).

Although we have required district courts to consider the factors in § 3553(a) in

exercising its post-Booker sentencing discretion, this court has never required

district courts “to explain on the record how the § 3553(a) factors justify the

sentence.” United States v. Lopez-Flores, 444 F.3d 1218, 1222 (10th Cir. 2006).

Instead, as long as a district court is aware of its obligation to consider the

numerous and vague sentencing factors set out in § 3553(a), and as long as the

district court actually considers the arguments made by the parties at the

sentencing hearing, the district court’s decision as to an appropriate sentence is

entitled to substantial deference.

The second procedural requirement is completely at odds with these

principles. See Fed. R. App. P. 35(a)(1) (recognizing the appropriateness of en

banc review when “necessary to secure or maintain uniformity of the court’s

7
decisions”). The developing case law in this Circuit on the question of appellate

review of sentences can only be described as hostile to the advisory Guidelines

scheme mandated by Booker. M ateo, 2006 W L 3775864, at *10 (M urphy, J.,

joined by Kelly, J., concurring) (noting this court’s recent precedents, which

establish some kind of sliding scale under which district courts are required to

offer greater justifications the farther a sentence varies from the advisory

Guidelines range, can only be understood as “attempt[ing] to force the district

courts to hew as close to the Guidelines range as possible”). W ith the panel

decision in Atencio, this court has taken its hostility to the advisory Guidelines

system mandated by Booker to its logical (or, perhaps, illogical) pinnacle: any

deviation from the range set out in the purportedly advisory Guidelines range

must be specifically justified by the district court, with reference to the particular

§ 3553(a) factors invoked. Atencio, No. 05-2279, slip op. at 14-19.

After the panel decision in Atencio, it is now as difficult as it possibly

could be for a district court in this circuit to impose a sentence outside the range

set out in the Guidelines. “Although many might bemoan the decision in Booker,

it is the law of the land. The Guidelines are no longer mandatory and it is

improper for this court to impose a system of appellate review that seeks to return

this circuit, de facto, to a mandatory system.” M ateo, 2006 W L 3775864, at *10

(M urphy, J. joined by Kelly, J., concurring). For all those reasons set out in my

separate opinion in M ateo, the second procedural requirement set out by the

Atencio panel is completely at odds with Booker.

8
 In conclusion, the panel decision in Atencio represents the ultimate

imposition of formality, stringency, and complexity in sentencing. Atencio injects

serious, untoward obstacles to the exercise of the very sentencing discretion by

the district courts that Booker was intended to revive. The imposition of a

sentence outside the advisory Guideline range in reliance on the discretionary

factors in § 3553(a) will become painful and complex and will systemically slow

the sentencing process. It cannot be overstated that the sole job of this court is to

determine whether a sentence imposed by the district court is unreasonable.

Booker, 543 U.S. at 260-65. That review should not entail the kind of de novo

review underlying Atencio. Instead, as long as it is clear the district court

understood and considered the arguments of the parties, the district court’s

sentencing decision should be affirmed unless it is so outside the bounds of

reason as to be considered unreasonable. Because the panel decision in Atencio is

completely at odds with these principles, and because the en banc court has

chosen not to intervene to forestall these deficiencies, I respectfully dissent from

the denial of hearing en banc.

9
 F I L E D
United States Court of Appeals
Tenth Circuit
PU BL ISH
January 17, 2007
UNITED STATES COURT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

U N ITED STA TES O F A M ER ICA,

Plaintiff - Appellee,
No. 05-2279
v.

H A RRIS A TEN CIO ,

Defendant - Appellant.

Appeal from the United States District Court
for the District of New M exico
(D.C. No. CR -05-662 JP)

Susan B. Dunleavy, Assistant Federal Public Defender, Office of the Federal
Public D efender, Albuquerque, New M exico for the Defendant - Appellant.

David N. W illiams, Assistant United States Attorney (David C. Iglesias, United
States Attorney, Office of the United States Attorney, with him on the brief)
Albuquerque, New M exico for the Plaintiff - Appellee.

Before H E N RY, L UC ER O, and M cCO NNELL, Circuit Judges.

L UC ER O, Circuit Judge.

Harris A tencio appeals his sentence of 84 months’ imprisonment for assault

resulting in serious bodily injury. Although the district court properly calculated
the range under the U nited States Sentencing G uidelines at 37 to 46 months’

imprisonment, it used its discretion under United States v. Booker, 543 U.S. 220

(2005), to impose a 38-month upward variance from that range based on

considerations listed in 18 U.S.C. § 3553(a). It also imposed a special condition

that Atencio register as a sex offender. Because the court failed to give notice of

its intent to vary the sentence above the advisory range and did not adequately

explain its reasons for the variance, we REV ER SE and REM AND for

resentencing. W e also REV ER SE the sex-offender registration requirement due

to the district court’s failure to provide advance notice of its consideration of this

special condition and R EM A N D for reconsideration with notice.

I

In M arch 2005, Atencio was living with Richelle M ontoya, with whom he

had one child. According to investigative reports, M ontoya decided to leave

Atencio on M arch 10, 2005 because of his alcohol use, mistreatment of her

children, and violent abusiveness toward her. One night, after Atencio and his

cousin left the family home to go drinking and gambling, M ontoya and several of

her family members gathered up M ontoya’s belongings and took her three

children to the home of her mother, Judy M ontoya, in Torreon, New M exico.

M ontoya left a note for Atencio informing him that she was ending the

relationship and instructing him not to contact her or her family.

-2-
 At approximately 4 a.m. the next morning, Atencio appeared at Judy

M ontoya’s home with his cousin and a friend. Noticeably intoxicated, he banged

loudly on a glass door, demanding to see M ontoya. W hen no one answered,

Atencio broke the door and entered the house carrying an axe he found outside.

He was immediately confronted by Judy M ontoya and M ontoya’s sister, Vivian

M ontoya. Atencio swung the axe toward Judy, but Vivian stepped between them

and was struck on the right side of her head with the blade of the axe. Atencio’s

companions then restrained him and carried him back to their vehicle.

Vivian M ontoya was rushed by emergency helicopter to a hospital in Santa

Fe, New M exico, where she was treated for massive head trauma, a fracture of the

right orbital bone, an open fracture of the right temporal lobe, hemorrhaging of

the right eye, and facial lacerations. These injuries, deemed life-threatening,

required several surgeries and thirty-three stitches.

On April 15, 2005, Atencio was indicted on one count of assault resulting

in serious bodily injury in violation of 18 U.S.C. §§ 113(a)(6) and 1153. He pled

guilty to this charge the same day. His Presentence Report (“PSR”) assigned a

base offense level of 14 for the crime. Four levels w ere added because Atencio

had used a dangerous weapon, and five were added because the victim sustained

serious bodily injury. Three levels were subtracted for Atencio’s acceptance of

responsibility for his criminal conduct. The PSR also placed Atencio in criminal

history category II due to his prior conviction for sexual abuse of a minor in

-3-
1999. The adjusted offense level of 20, combined with the criminal history

category of II, resulted in an advisory guideline range of 37 to 46 months’

imprisonment. However, the PSR also noted that a criminal history category of II

was possibly underrepresentative because it did not reflect a prior juvenile

adjudication for aggravated battery, assault, and possession of a deadly weapon.

It recommended that the court consider increasing the criminal history category

by one level to account for the adjudication, which w ould yield an advisory

guideline range of 41 to 51 months.

During the sentencing hearing held on August 15, 2005, the district court

found that Atencio knowingly, voluntarily, and intelligently pled guilty to the

information. It adopted the recommendations of the PSR, applying an offense

level of 20 and a criminal history category of II to calculate an advisory

Guidelines range of 37 to 46 months’ imprisonment. Rather than assigning a

sentence within this range, however, the court decided to impose a sentence

“independent of the United States Sentencing Guidelines.” After considering the

factors set forth in § 3553(a), it sentenced Atencio to 84 months’ imprisonment, a

38-month upward variance from the Guidelines range. 1 Prior to the hearing, the

1
There has been some inconsistency in our circuit’s post-Booker
sentencing nomenclature. In United States v. Calzada-M aravillas, 443 F.3d 1301
(10th Cir. 2006), for example, we referred to a sentence increase based on
§ 3553(a) factors as a “non-guideline departure” and an increase based on
application of U .S.S.G. Chapter Four as a “guideline departure.” Id. at 1304. In
United States v. Dozier, 444 F.3d 1215 (10th Cir. 2006), we termed a sentencing
(continued...)

-4-
court gave no notice to either party of its intention to vary upward from the

advisory range of 37 to 46 months.

At the hearing, the court focused on two factors to support the variance:

(1) Atencio’s criminal history, including his abuse of women; and (2) the violence

and seriousness of Atencio’s crime. 2 In finding that Atencio regularly abused

women, the district court purportedly adopted the statements of both the PSR and

the A ddendum. The Report and Addendum, however, contradicted each other;

1
(...continued)
increase an “upward departure” where the district court based the enhancement on
victim impact statements – an arguably permissible ground under § 3553(a) but
not in Chapters Four or Five of the Sentencing Guidelines. Id. at 1217.
W e now clarify that when a court reaches a sentence above or below the
recommended Guidelines range through application of Chapters Four or Five of
the Sentencing Guidelines, the resulting increase or decrease is referred to as a
“departure.” W hen a court enhances or detracts from the recommended range
through application of § 3553(a) factors, however, the increase or decrease is
called a “variance.” Our most recent discussion of post-Booker sentencing
terminology adopts these definitions. See United States v. Cage, 451 F.3d 585,
591 n.2 (10th Cir. 2006).
2
During one portion of the sentencing hearing, the judge mistakenly
believed that the maximum sentence for the offense of conviction was 20 years’
imprisonment. The court announced its intention “to impose a sentence of half
[of the maximum], or 10 years, which, frankly, may be on the low side, to provide
just punishment for what he did in this case.” Later in the proceedings, the
prosecutor pointed out that the maximum sentence w as actually ten years’
imprisonment. Id. at 16. The court then announced:

I will change the sentence from the proposed 120 months to a term of
84 months which I think, again, is a very light sentence given the
defendant’s criminal history of continuous abuse, violent abuse of
women, and the exceptionally violent circumstances of the offense to
which he pled guilty for w hich I'm imposing sentence today.

-5-
whereas the Report characterized Atencio’s relationship with M ontoya as one of

repeated abuse, the Addendum filed by Atencio stated that “M r. Atencio admitted

to striking, or pushing Richelle one time, and not to a pattern of beating her as

indicated.” At the outset of the sentencing hearing, the court asked if the parties

had any objections to the factual materials in the PSR, and whether there was any

need for an evidentiary hearing to resolve disputed facts. Neither Atencio nor the

Government made any objections or moved for an evidentiary hearing. Despite

the contradictory statements, the court proceeded to adopt the findings of both the

Report and the A ddendum in determining that Atencio’s criminal history score

did not account for his regular abuse of women. It also repeatedly stressed

Atencio’s prior sexual abuse conviction, but explicitly stated that it did not rely

on his prior juvenile adjudication in varying upward.

In addition to sentencing Atencio to 84 months’ imprisonment, the court

imposed a sex-offender registration requirement as a condition of supervised

release. It did not notify Atencio that it w as contemplating this requirement.

Atencio now appeals his sentence of 84 months’ imprisonment and the sex-

offender registration requirement. This court has jurisdiction to consider his

appeal under 18 U.S.C. § 3742(a).

II

-6-
 Post-Booker, we review sentencing decisions for reasonableness, which has

both procedural and substantive components. Cage, 451 F.3d at 591 (10th Cir.

2006). In setting a procedurally reasonable sentence, a district court must

calculate the proper advisory Guidelines range and apply the factors set forth in §

3553(a). See id.; United States v. Kristl, 437 F.3d 1050, 1055 (10th Cir. 2006).

It must also afford defendants their rights under the Federal Rules of Criminal

Procedure. See Dozier, 444 F.3d at 1217-18. A substantively reasonable

sentence ultimately reflects the gravity of the crime and the § 3553(a) factors as

applied to the case. Cage, 451 F.3d at 594.

Because we reverse on procedural reasonableness, we do not reach the

substantive reasonableness of Atencio’s sentence. Atencio attacks two procedural

elements of the variance imposed at sentencing: (1) the court’s failure to provide

notice of its intention to impose an upward variance, and (2) the adequacy of its

explanation for varying based on § 3553(a) factors.

A

In 2001, Congress amended Rule 32 of the Federal Rules of Criminal

Procedure to include part (h), which affords parties the right to advance notice of

a district court’s intent to depart from the applicable Guidelines range, and of the

grounds for such departure. 3 This rule codifies the Supreme Court’s decision in

3
Fed. R. Crim. P. 32(h) states:

(continued...)

-7-
Burns v. United States, 501 U.S. 129, 138 (1991), holding that Rule 32 – which

afforded defendants the opportunity to comment on sentencing matters

– implicitly required such notice. 4 The Court reasoned that failure to provide

notice would be “inconsistent with Rule 32’s purpose of promoting focused,

adversarial resolution of the legal and factual issues relevant to fixing Guidelines

sentences,” id. at 137, and expressed concern that:

At best, under the Government’s rendering of Rule 32 [to not require
notice], parties will address possible sua 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. At worst, and more likely, the parties
will not even try to anticipate such a development; where neither the
presentence report nor the attorney for the Government has suggested
a ground for upward departure, defense counsel might be reluctant to
suggest such a possibility to the district court, even for the purpose
of rebutting it. In every case in which the parties fail to anticipate an
unannounced and uninvited departure by the district court, a critical
sentencing determination will go untested by the adversarial process
contemplated by Rule 32 and the Guidelines.

3
(...continued)
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.

4
Language requiring the court to provide parties an opportunity to
comment on “matters relating to an appropriate sentence” is now incorporated in
Fed. R. Crim. P. 32(i)(1)(C).

-8-
Id. To effectuate the adversarial sentencing process contemplated by Rule 32, the

Court required advance notice of sua sponte departures under the then-mandatory

Guidelines, and of the reasons for departure.

W e continue to apply the notice requirements of Burns and Rule 32(h) to

post-Booker sentencing departures. In Dozier, we made clear that “[w]e do not

question the viability of Rule 32(h) and Burns after Booker” in reversing a district

court’s upward departure where it failed to give adequate notice of its intent to

depart. 444 F.3d at 1217. Specifically, we held that “Rule 32(h) survives Booker

and requires a court to notify both parties of any intention to depart from the

advisory sentencing Guidelines as well as the basis for such departure when the

ground is not identified in the presentence report or in a party’s prehearing

submission.” Id. at 1218.

Similarly, in Calzada-M aravillas, we reversed a sentencing departure,

determining that the district court erred by failing to give the defendant notice of

the ground on which the court contemplated departure. 443 F.3d at 1303.

Calzada-M aravillas again emphasized the importance and function of prior notice:

“To provide the parties the opportunity to hone their legal arguments, the district

court must provide advance notice of its intent to depart.” Id. at 1304 (emphasis

in original; citations omitted).

Our caselaw thus leaves no doubt that we require Rule 32(h) notice for

sentencing departures. In this case, however, the district court imposed a

-9-
variance and not a departure, 5 explicitly stating that it relied on § 3553(a) factors

to impose a non-G uidelines sentence above the advisory range.

Four of our sister circuits – the Second, Fourth, Sixth, and Ninth – have

held that Rule 32(h) notice applies to variances. See U nited States v. Cousins,

2006 W L 3435608 *6 (6th Cir. 2006) (published opinion); United States v. Anati,

457 F.3d 233, 237-38 (2d Cir. 2006); United States v. Evans-M artinez, 448 F.3d

1163, 1167 (9th Cir. 2006); United States v. Davenport, 445 F.3d 366, 371 (4th

Cir. 2006). Four – the Third, Seventh, Eighth, and Eleventh – have ruled that

such notice is not required for variances. See United States v. Irizarry, 458 F.3d

1208, 1212 (11th Cir. 2006); United States v. Nation, 451 F.3d 189, 198-99 (3d

Cir. 2006); United States v. W alker, 447 F.3d 999, 1007 (7th Cir. 2006); United

States v. Long Soldier, 431 F.3d 1120, 1122 (8th Cir. 2005). Circuits holding that

Rule 32(h) notice is not required for variances have generally reasoned that

because post-Booker defendants are on notice that the district court must consider

5
The district court in Calzada-M aravillas did not indicate w hether it
adopted a departure or variance. Because the failure to notice the departure
warranted reversal, we declined to reach the issue of the notice required for a
variance. 443 F.3d at 1304.
W e note, however, that while Dozier explicitly held that Rule 32(h) notice
is required for what we there termed departures, the facts of Dozier indicate that
the sentence incorporated what we now call a variance. 444 F.3d at 1217
(describing a sentencing enhancement based on victim impact statements); see
supra note 1. (Dozier was written before we drew a distinction between
§ 3553(a)-based increases and Guidelines-based increases in Calzada-M aravillas
and Cage.) As such, Dozier has arguably already held that Rule 32(h) notice
applies to variances. At any rate, we need not dwell on the semantics of that
case, as we explicitly make this holding today.

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the § 3553(a) factors, the “unfair surprise” rationale underlying Burns does not

apply. See, e.g., Irizarry, 458 F.3d at 1212; Nation, 451 F.3d at 196; W alker, 447

F.3d at 1007.

W e take the view of the Second, Fourth, Sixth and Ninth Circuits. Burns

describes Rule 32’s purpose as “promoting focused, adversarial resolution of the

legal and factual issues relevant to fixing Guidelines sentences.” 501 U.S. at 137.

Although Booker has rendered the G uidelines advisory, it has not affected Burns’

mandate for “focused, adversarial resolution of the legal and factual” bases for

sentencing; nor does it negate the benefits of notice in furthering this end.

Defendants are, indeed, constructively “on notice” of § 3553(a) factors post-

Booker. Under the previous sentencing regime, however, they were equally aw are

of the specified circumstances for departure under the Guidelines. See U.S.S.G.

§§ 4A1.3, 5K1.1-2.23. M oreover, for both departures and variances, notice of

contemplated grounds allow s parties to focus their attention on those

considerations most relevant to the sentencing court’s decision, facilitating the

“adversarial process” and “meaningful opportunity to be heard” contemplated by

Burns, 501 U.S. at 137-38. W e therefore hold that Rule 32(h) applies to variances

as w ell as to departures, requiring courts to give advance notice of their intent to

sentence above or below the identified advisory Guidelines range.

Atencio’s PSR indicated that an upward departure might be warranted

because his criminal history score failed to take into account his prior juvenile

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adjudication for aggravated battery, assault, and possession of a deadly weapon.

The Government argues that this constitutes notice. However, Rule 32(h) and

Burns leave no doubt that the defendant has a right to know in advance the very

ground upon which the district court might upwardly depart or vary. Here, the

district court explicitly disavowed reliance on Atencio’s juvenile adjudication –

the only ground identified as a potential reason for departure in the PSR. As such,

Atencio’s PSR did not provide notice of the grounds for the upward variance, and

the district court erred by failing to give advance notice of its intent to vary and its

contemplated reasons.

Having decided that Rule 32(h) error occurred, we must now determine the

standard of review to apply in light of Atencio’s failure to object to the lack of

notice at sentencing. Since our decision in United States v. Bartsma, 198 F.3d

1191, 1198 (10th Cir. 1999), we have held that a failure to object to Rule 32(h)

error at sentencing does not constitute a forfeiture. However, the en banc court

today overrules Bartsma, requiring a defendant to object to the lack of notice at

sentencing to preserve his claim of Rule 32(h) error for appellate review. 6

6
A panel decision may overrule a point of law established by a prior panel
through an en banc footnote by obtaining authorization from all active judges on
the court. See, e.g., United States v. M eyers, 200 F.3d 715, 721 n.3 (10th Cir.
2000). This opinion has been circulated to all active members of this court, and it
is our unanimous decision to overturn the point of law articulated in Bartsma that
a defendant does not forfeit his right to appeal by failing to object to Rule 32
notice error at sentencing. (Although Bartsma referred to failure to object as a
“waive[r],” 198 F.3d at 1199, the proper term for failure to make a timely
(continued...)

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 Upon objecting to the lack of notice, the defendant should then move for a

continuance. W e will generally assume that a reasonable continuance cures Rule

32(h) error, rendering it harmless by allowing parties adequate time to prepare to

contest or support the variance – just as they could have, had they received notice

prior to the sentencing hearing. This procedure both promotes the “focused,

adversarial resolution of the legal and factual [sentencing] issues” contemplated

by Burns, and avoids inefficient appellate litigation by permitting the court below

to cure its error. 501 U.S. at 137. Although we expect that a district court will

grant a continuance in most cases of Rule 32(h) error, we note that failure to grant

a continuance will not always require reversal of a variance. For example, a

modest variance in light of a district court’s consideration of the generalized

6
(...continued)
assertion of a right is “forfeiture.” See United States v. Olano, 507 U.S. 725, 733
(1993).) Bartsma reasoned that application of harmless error review even in the
absence of objection below was justified because the “complete lack of notice . . .
short-circuited the significance of any opportunity to comm ent.” 198 F.3d at
1198. This logic would be persuasive if requiring defendants to object to the lack
of notice would also require them to contest the underlying reasons for the
relevant sentencing decision. However, objection to the lack of notice alone does
not necessitate addressing the underlying merits; a defendant can object merely by
pointing out the Rule 32(h) error and requesting a continuance. Because parties
should now be well aware that Rule 32(h) entitles them to advance notice of
certain sentencing decisions, requiring objection at sentencing to the lack of
notice is neither unfair nor burdensome. For these reasons, the en banc court now
overrules Bartsma and holds that parties must object to Rule 32(h) error at the
time of sentencing. However, to avoid unfairness to the parties, the en banc court
applies this new rule prospectively.

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§ 3553(a) factors might neither entail unfair surprise nor profit from advance

notice, and may thus constitute harmless error.

Because our settled practice under Bartsma obviated the need for objection

to Rule 32(h) error at sentencing, the en banc court applies the new rule

prospectively. See note 6, supra. W e thus review Atencio’s claim for harmless

error, although future claims of Rule 32(h) error will be review ed for plain error in

the absence of objection. The lower court’s failure to provide notice diminished

Atencio’s ability to meaningfully comment on sentencing considerations.

M oreover, the 38-month upward variance imposed was significant, and notice

would have helped Atencio contest its bases. Accordingly, the Rule 32(h) error

was not harmless.

B

The parties dispute the adequacy of the district court’s § 3553(a) analysis.

In support of its variance, the district court identified two categories of supporting

factors: (1) the underrepresentation of Atencio’s criminal history, and (2) the

violence of the offense.

1

Atencio’s PSR revealed three prior incidents of criminal behavior: (1) a

juvenile adjudication for which little information was available and which the

court explicitly did not consider; (2) a petty misdemeanor for shouting profanities

when drunk; and (3) a 1998 conviction for sexual abuse of a minor. Atencio was

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placed in criminal history category II due to the three points he received for the

sexual abuse conviction. In conducting its § 3553(a) analysis, the district court

then used this same conviction to explain its upward variance.

Our pre-Booker law precluded sentencing courts from departing upward

based on a conviction already used to increase the criminal history level. See

United States v. Yates, 22 F.3d 981, 988 (10th Cir. 1994). Yates, of course, does

not survive Booker wholly intact; that result would be inconsistent with the

advisory nature of the Guidelines. M oreover, at issue in the instant case is a

§ 3553(a) variance, not a Guidelines departure. Nonetheless, because the

Guidelines carefully account for prior crimes through criminal history categories,

a district court varying or departing on the basis of a conviction already

considered in the criminal history score must at least explain why that score fails

to reflect the seriousness of the prior crime. Allowing a district court to vary or

depart in the absence of such explanation would amount to unjustified double-

counting of the prior crime, and also hinder this court’s ability to review the

reasonableness of the variance or departure. See United States v. Sanchez-Juarez,

446 F.3d 1109, 1117 (10th Cir. 2006) (“W e are therefore persuaded that our

pre-Booker requirement that district courts provide sufficient reasons to allow

meaningful appellate review of their discretionary sentencing decisions continues

to apply in the post-Booker context.”). Explanation of a variance is especially

important for reasonableness review in light of the presumptively reasonable

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effect given to the Guidelines in this circuit. See Cage, 451 F.3d at 594-95. Such

explanation need not be overly detailed, but should at least address why the

criminal history level fails to adequately account for the prior crime or crimes.

The court also relied on Atencio’s history of physical abuse of women in

determining that the Guidelines underrepresented his criminal history. The PSR

indicates that M ontoya told investigating agents “that she had been a repeated

victim of violent physical abuse at the hands of the defendant.” It further states

that Atenico admitted to investigating agents that he and M ontoya had a

“tumultuous relationship” and that he “had been physically violent with [M ontoya]

to the point of striking and beating her.” Atencio objected to this characterization

of their relationship prior to the sentencing hearing, and the Probation Department

consequently attached the First Addendum to the PSR stating it would amend

Atencio’s admission to investigating agents to say the following: “M r. Atencio

admitted to striking, or pushing [M ontoya] one time, and not to a pattern of

beating her as indicated in this section.”

At sentencing, the court asked if the parties had any objections to the factual

statements in the PSR or desired an evidentiary hearing to resolve disputed facts.

After neither Atencio nor the Government objected, the court adopted the findings

of both the PSR and the contradictory Addendum in finding that Atencio regularly

abused women, and did not address the conflict.

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 W e have previously held that failure to object to a disputed fact at the

sentencing hearing constitutes forfeiture, despite prior submission of a written

objection. See United States v. Toledo, 985 F.2d 1462, 1471 (10th Cir. 1993). W e

thus review this claim for plain error, which “occurs when there is (1) error, (2)

that is plain, which (3) affects substantial rights, and which (4) seriously affects

the fairness, integrity, or public reputation of judicial proceedings.” United States

v. Torres-D uenas, 461 F.3d 1178, 1180 (10th Cir. 2006) (quotations omitted).

Rule 32 states that a court “must – for any disputed portion of the

presentence 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.” Fed. R. Crim. P.

32(i)(3)(B). Because Atencio’s characterization of one incident of abuse in the

Addendum controverted the depiction of regular abuse of M ontoya in the PSR, the

district court plainly erred in relying on the allegedly regular abuse in varying the

sentence, but failing to resolve the conflict. This error deprived Atencio of his

substantial due process right to a ruling on the disputed issue, which may have

undermined a significant basis for the variance and resulted in a lower sentence.

Adoption of contradictory factual statements at sentencing also seriously affects

the fairness, integrity, and public reputation of judicial proceedings. Thus, we

hold that the district court committed plain error in failing to follow Rule

32(i)(3)(B). See United States v. W olfe, 435 F.3d 1289, 1300 (10th Cir. 2006)

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(remanding for reconsideration where the district court “did not explain how it

made [a] factual finding[] in light of contradictory statements contained in the

PSR ,” even where the defendant failed to object to the adoption of inconsistent

statements at the sentencing hearing).

2

The district court also cites the violence of the offense in support of the

variance. How ever, Atencio’s PSR had already made two adjustments to the base

offense level to account for the seriousness and consequences of his crime, adding

four points for the use of a “dangerous weapon” and five points for the “serious”

extent of bodily injury sustained by the victim. These nine points were one point

less than the maximum cumulative adjustment permissible under the Guidelines.

The district court emphasized Atencio’s use of an axe and the extent of

injury to Vivian M ontoya, but did not explain why the nine point adjustment failed

to capture the violence and heinousness of the offense. Basing the variance on

these factors was thus analogous to the double-counting of the prior rape

conviction, discussed in Section II(B)(1), supra. For the same reasons stated in

that analysis – the facilitation of reasonableness review and the impropriety of

double-counting – we require the district court to articulate w hy the upward

adjustments failed to account for the violence of the crime. W e thus agree with

the First Circuit that:

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 W hen a factor is already included in the calculation of the
guidelines sentencing range, a judge who wishes to rely on that
same factor to impose a sentence above or below the range must
articulate specifically the reasons that this particular defendant’s
situation is different from the ordinary situation covered by the
guidelines calculation.

United States v. Zapete-Garcia, 447 F.3d 57, 60 (1st Cir. 2006). Because the

district court did not articulate such reasons, its emphasis on the violence of

Atencio’s crime fails to support the upward variance. 7

III

Finally, we consider the propriety of the district court’s imposition, without

advance notice, of sex-offender registration as a condition of supervised release.

In Bartsma, we required a district court to provide notice of a special condition on

supervised release when that condition impacts the defendant’s liberty and is “not

on its face related to the offense charged.” 198 F.3d at 1199-1200 (citing United

States v. Edgin, 92 F.3d 1044, 1049 (10th Cir. 1996)). Bartsma held that sex-

offender registration meets the Edgin standard in that the charged offense was not

7
Atencio argues that the district court impermissibly enhanced the sentence
on the basis of gender. The Guidelines unequivocally state that race, sex,
national origin, creed, religion and socio-economic status are factors that
“are not relevant in the determination of a sentence.” U.S.S.G. § 5H1.10;
see also United States v. Neary, 183 F.3d 1196, 1198 (10th Cir. 1999). In
response, the Government insists that the sentence is not based on gender.
Of course, reliance on gender would be impermissible, but we do not need
to reach the issue. Given our reversal for resentencing on other grounds, it
is unnecessary for us to analyze the court’s remarks on point.

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a sex crime. On that basis, the Bartsma panel reversed the imposition of a sex-

offender registration requirement in the absence of notice. Id.

Atencio failed to object to the lack of notice of imposition of a sex-offender

registration requirement. Given our prospective application of footnote six, supra,

our review of Atencio’s claim remains under harmless error. Because the district

court failed to provide notice to Atencio of the potential imposition of sex-

offender registration requirements in a non-sexual offense context, we cannot say

the Rule 32(h) error was harmless. W e reverse the imposition and remand for

sentencing upon prior notice.

IV

W e REVERSE the district court’s sentencing decision and REM AND for

resentencing consistent w ith this opinion.

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