United States v. Vega-Santiago

United States Court of Appeals
For the First Circuit

No. 06-1558

UNITED STATES OF AMERICA,

Plaintiff, Appellee,

v.

MANUEL A. VEGA-SANTIAGO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. José A. Fusté, U.S. District Judge]

Before

Torruella and Lipez, Circuit Judges,
and DiClerico, Jr.,* Senior District Judge.

Johnny Rivera-Gonzáles for appellant.
Thomas F. Klumper, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Nelson Pérez-Sosa, Assistant United States Attorney, were on brief,
for appellee.

October 31, 2007

* Of the District of New Hampshire, sitting by designation.
 LIPEZ, Circuit Judge. In 2005, a federal jury convicted

Manuel Vega-Santiago ("Vega") of armed carjacking and related

weapons charges. The district court imposed two consecutive ten-

year sentences. On appeal, Vega contests his conviction on

multiple grounds: the victims' identification of him was tainted

and improperly admitted; the court erred in allowing testimony

concerning his confession, which he claims was involuntarily given;

the district court abused its discretion in reopening the case to

allow the government to introduce additional evidence after he

moved for a judgment of acquittal; and the evidence presented at

his trial was insufficient to establish all elements of the charged

offenses. We find no merit in any of these claims.

Vega also challenges his sentence, arguing that it is

unreasonable and that he was not given proper notice of the court's

intent to impose a sentence above the Sentencing Guidelines' range.

This latter contention requires us to address an issue that has

divided the circuits – whether the requirement in Federal Rule of

Criminal Procedure 32(h) that a court give the parties "reasonable

notice" of a contemplated departure from the Sentencing Guidelines

applies post-Booker when a court is considering a sentence that

varies from the Guidelines.

We conclude that Rule 32(h) applies to post-Booker

variances, as well as to Guidelines departures. We also conclude

that, in the circumstances of this case, the notice and the term of

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imprisonment were both reasonable. Thus, although we must remand

for correction of the written judgment, which records an inaccurate

sentence on one charge, we otherwise affirm the conviction and

sentence.

I.

On the evening of September 6, 2005 Javier García-Toledo

("García") and Pedro Alarcón-Carrasquillo ("Alarcón") were

confronted by an armed intruder in García's kitchen. The intruder

– wearing black gloves, a black jacket, a black cap and a white

shirt, and carrying a black bag of the style used to carry

motorcycle helmets – brandished a gun and ordered the men to

surrender their money and jewelry. Threatening to kill them, the

intruder then demanded that García bring him the contents of his

bedroom safe. While making these threats and demands, the intruder

fired his gun in close proximity to the men. García initially

believed he had been shot; however, the bullet missed him and

lodged in the wall behind him. Shortly thereafter, García

retrieved several pieces of jewelry from the safe but left his own

firearm there, and he returned to the kitchen with the items.

Upon García's return, the intruder took the jewelry and

asked whether García's car, a red Nissan 350Z, had a special alarm

system. Ascertaining that it did not, the intruder demanded that

García start the vehicle. The intruder then directed the men to

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the bedroom. Shortly thereafter, García and Alarcón heard the

sound of the car's engine moving away from the house.

Confident that the intruder was leaving, García retrieved

his pistol from the bedroom safe and the men pursued the intruder,

firing at the car as it backed down the driveway. Using Alarcón's

truck, the men pursued the intruder through the streets.

Meanwhile, they called 911 to report the robbery. Happening upon

a patrol car at a nearby convenience store, the men stopped to

explain the situation to the police. At the officers' suggestion,

García surrendered his weapon.

While the men were speaking with the police, the officers

received the news that a vehicle matching the description of

García's Nissan had been found. García and Alarcón drove to the

scene, followed by the police officers. As they approached the

site where the car was abandoned, the men saw a group of officers

interviewing someone; both men spontaneously identified that

person, appellant Vega, as the intruder. A search of the vicinity

uncovered a black motorcycle bag containing black gloves, a

baseball cap, a black mask, a black shirt, and a .357-revolver with

its serial number defaced and one bullet expended. The stolen

items were also discovered nearby. Six .357-caliber bullets in a

speed-loader were recovered from Vega's pocket; the bullets were of

the same make as the bullets found in the revolver.

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 Vega was arrested on the spot by local police and

subsequently was transferred to federal custody. On September 21,

2005, a grand jury returned a three-count indictment charging him

with: (1) an armed carjacking, with intent to cause death or

serious injury, in violation of 18 U.S.C. § 2119(1); (2) the use

and possession of a firearm during and in relation to a crime of

violence, in violation of 18 U.S.C. § 924(c)(1)(A); and (3) knowing

possession of a firearm with an altered or obliterated serial

number, in violation of 18 U.S.C. § 922(k). Vega pled not guilty

on all counts.

Vega's trial commenced on November 8 and both sides

completed their presentation of evidence that day. After the

government rested, defense counsel filed a motion for judgment of

acquittal under Federal Rule of Criminal Procedure 29, claiming

that the prosecution had not adduced sufficient evidence from which

a reasonable jury could conclude that Vega had committed the crime

of carjacking. In particular, the defense asserted that the

prosecution had not provided substantial evidence of the car's

movement in interstate commerce, a jurisdictional requirement under

18 U.S.C. § 2119. The district court allowed the government to re-

open its case the next morning for the narrow purpose of presenting

testimony regarding where the car was manufactured. After that

testimony, both sides delivered their closing arguments. That same

day, the jury found Vega guilty on all counts.

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 The Presentence Investigation Report ("PSR") prepared in

advance of the sentencing hearing noted that the second count,

charging use of a firearm during the carjacking, carried a

mandatory minimum ten-year sentence, to be imposed consecutively to

any other term of imprisonment. Although the carjacking offense

carried a maximum statutory penalty of fifteen years' imprisonment,

Vega's offense level and criminal history produced an advisory

Guidelines range of 57 to 71 months. The PSR included a victim

impact statement in which both García and Alarcón expressed their

desire that Vega receive the maximum sentence authorized by law.

The victims emphasized that they were confronted in García's home,

that they were forced to beg for their lives, that Vega showed

little respect for their lives when he fired his gun so close to

them that the gunpowder burned García's face, and that the event

had caused both men continuing anxiety. The PSR noted that the

probation officer had not "identified any information that would

warrant a departure from the guidelines." Neither party objected

to the PSR.

Shortly after the start of Vega's sentencing hearing, his

counsel noted that Count Two – the § 924(c) firearms charge –

required a ten-year term imposed consecutively to any other term of

imprisonment resulting from the charged criminal activity, and he

urged the court to impose a sentence at the bottom of the

Guidelines range for the remaining offenses. In response, the

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government pointed out that ten years was the statutory minimum for

the § 924(c) charge and the court could go above it. Defense

counsel, in turn, observed that the Guidelines provided for a ten-

year consecutive sentence and that, if the government believed a

higher sentence was warranted, it was required to give defendant

advance notice. Counsel also argued that the court was obliged to

give notice if it intended to go beyond the advisory Guidelines

term, specifically invoking Federal Rule of Criminal Procedure

32(h).1

The court rejected the notice argument, explaining its

view that Rule 32(h) applies only to formal "departures," which are

based on specific provisions of the advisory Guidelines, and not to

"variances" from the Guidelines based on the sentencing criteria

set out in 18 U.S.C. § 3553(a).2 After additional colloquy about

1
Rule 32(h) provides:

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.
2
The distinction between departures and variances was a
result of the Supreme Court's decision in United States v. Booker,
543 U.S. 220 (2005), which made the Sentencing Guidelines advisory
rather than mandatory. Post-Booker, we review sentences for
reasonableness based on various factors set out in 18 U.S.C. §
3553(a). The Guidelines nonetheless remain a starting point in
sentencing, and courts may still justify sentences outside the
recommended Guidelines range by reference to Guidelines "departure"
provisions. When a court imposes a sentence outside the Guidelines

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the adequacy of the Guidelines range in this case, including a

statement from Alarcón reiterating the request that Vega receive

"the greatest term possible," the court imposed a total sentence of

twenty years: the ten-year mandatory minimum on the § 924(c) count

(Count Two); an additional ten-year sentence on the carjacking

count (Count One); and a sixty-month sentence for possessing a

weapon with an obliterated serial number (Count Three), to be

served concurrently with the carjacking term. The court explained

that this variance from the Guidelines resulted from consideration

of two of the factors listed in § 3553(a): the nature and

circumstances of the offense and Vega's background. The court

additionally ordered three years of supervised release. This

appeal followed.

II.

A. Pretrial Identification

Vega contends that the circumstances under which the

victims identified him as the perpetrator were so impermissibly

suggestive as to taint the victims' subsequent identification

testimony at trial, thereby denying him due process of law. See,

e.g., Neil v. Biggers, 409 U.S. 188, 198 (1972) (explaining that

"[s]uggestive confrontations are disapproved because they increase

the likelihood of misidentification, and unnecessarily suggestive

range based on its assessment of the section 3553(a) factors –
without regard to specific Guidelines departure provisions – the
deviation is considered a variance.

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ones are condemned for the further reason that the increased chance

of misidentification is gratuitous"). In particular, Vega claims

that any identification by the victims should have occurred through

a formal line-up including other individuals rather than at the

site where the car was recovered, with Vega surrounded by police

officers. However, Vega filed no pretrial motion requesting

suppression of the identification, as required by Federal Rule of

Criminal Procedure 12(b)(3).3 Section 12(e) of the Rule states

that the failure to file such a motion constitutes a waiver, absent

a showing of good cause. Vega asserts no cause that might justify

such relief; we consider this issue waived. United States v.

Torres, 162 F.3d 6, 11 (1st Cir. 1998); United States v. Gomez-

Benabe, 985 F.2d 607, 612 (1st Cir. 1993).

B. Voluntariness of Vega's Confession

Vega argues that the district court erred in admitting

his confession into evidence, in violation of his Fifth Amendment

right against self-incrimination, because the confession was not

voluntarily given. See Miranda v. Arizona, 384 U.S. 436, 476

(1966). He also claims that his Sixth Amendment right to

representation was violated because the confession occurred after

the commencement of prosecution. See Texas v. Cobb, 532 U.S. 162,

167-68 (2001). The government counters that Vega was read his

3
Rule 12(b)(3) identifies motions that "must be raised before
trial" and includes motions to suppress evidence.

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rights repeatedly, and knowingly and voluntarily chose to waive

them.

In reviewing a district court's denial of a motion to

suppress, we review its factual findings for clear error and its

"ultimate Fourth Amendment conclusions de novo." United States v.

Paradis, 351 F.3d 21, 24 (1st Cir. 2003) (citing Ornelas v. United

States, 517 U.S. 690, 699 (1996)); see also United States v.

Materas, 483 F.3d 27, 32 (1st Cir. 2007). We reverse only if no

reasonable view of the evidence supports the district court's

decision. Materas, 483 F.3d at 32. We find no error in the

district court's determination that Vega voluntarily waived his

rights.

During Vega's trial, the district court conducted a

suppression hearing to determine the admissibility of his

confession. The officer who detained Vega testified that he read

the Miranda warnings at the scene where the car was recovered. At

that time, Vega refused to sign a waiver card and did not request

an attorney. The police officer who took Vega into custody

testified that, when given an opportunity to make a phone call,

Vega called "a client . . . whose car he fixes," rather than an

attorney. The FBI agent who interrogated Vega on June 7 testified

that he read Vega his rights and that Vega signed a form

acknowledging that he understood and agreed to waive his rights.

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The FBI agent testified that, after signing this form, Vega

confessed to the robbery.

At the same suppression hearing, Vega testified that he

had never been read his rights, that he repeatedly asked for an

attorney, and that the officer who took him into custody "put the

[speed-loader] in his hand and he struck me."4 On cross-

examination, Vega admitted that the FBI agent who interrogated him

never threatened him or struck him. The following colloquy

regarding Vega's waiver ensued:

Prosecutor: Isn't it [] a fact that you were
requested to read that document by yourself?
Vega: Yes, I read it. I read it from this
point to this point . . . . That is where I
read it to.
Prosecutor: You did understand that you had a
right to an attorney; isn't that right?
Vega: Yes.
Prosecutor: And you were also told and you
read that you had a right to remain silent?
Vega: Yes.

***

Prosecutor: And you were told that you had a
right to consult with an attorney and to seek
his advice, didn't you?

4
When asked if "the fact that you were struck in the face
while you were in police custody[] play[ed] any part into[sic] your
decision to answer [the FBI agent's] questions," Vega responded:
"Well, I don't know. It seemed like they were harassing me. They
had already hit me in the face." Vega also acknowledged that the
police officer who allegedly hit him was not present during his
interrogation.

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 Vega: Nope.
Prosecutor: Didn't you read it?
Vega: Well, it says there, but they didn't
give me the opportunity to have the lawyer
there with me.
Prosecutor: No. My question is did you read
that and if you did, did you understand what
it said?
Vega: Yes.
Prosecutor: And you also understood . . . that
if you were asked questions and you decided to
answer them, that at some point if you didn't
want to go on, you could quit and nothing
would happen. . . .
Vega: I don't remember that.
Prosecutor: Isn't it a fact that there came a
point in time when you were asked to answer
who was the person accompanying you for this
robbery and you decided not to answer any more
questions.
Vega: I don't remember.

At the conclusion of the suppression hearing, the court found Vega

"extremely evasive," and it gave him "no credibility on the issue

of his voluntariness." Our review of a district court's

credibility ruling is highly deferential, United States v. Ivery,

427 F.3d 69, 72 (1st Cir. 2005), and we find no basis for second-

guessing the court's assessment of Vega's behavior. Its

credibility determination was supported by the signed waiver and by

the testimony of the two police officers and the FBI agent that

they had read Vega his rights. We thus find no error in the

court's ultimate conclusion that Vega's confession was voluntary

and, therefore, admissible.

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C. Reopening of the Evidence

Vega claims that the district court erred when it allowed

the government to introduce additional evidence on a jurisdictional

element of the carjacking offense after the government rested its

case and Vega moved for a judgment of acquittal. We review the

district court's decision to reopen after the close of evidence for

abuse of discretion. United States v. Santana, 175 F.3d 57, 64

(1st Cir. 1999) (noting that review is for abuse of discretion even

when the court "reopens the case on its own initiative, rather than

on the motion of one of the parties"); United States v. Pandozzi,

878 F.2d 1526, 1534 (1st Cir. 1989) (finding no abuse of discretion

where court allowed government to reopen). In evaluating the

court's exercise of its discretion, we consider whether the value

of the additional evidence outweighed the potential for disruption

or prejudice in the proceedings, and if so, whether the government

had a reasonable excuse for failing to present the testimony during

its case-in-chief. See United States v. Peterson, 233 F.3d 101,

106 (1st Cir. 2000).

Here the court agreed to reopen the case to allow the

government to present evidence that García's Nissan 350Z was not

manufactured in Puerto Rico. To establish the crime of carjacking,

the government must prove that the vehicle in question "has been

transported, shipped, or received in interstate or foreign

commerce," 18 U.S.C. § 2119. Vega contended that the government

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had not introduced any such evidence and persisted in his request

for a judgment of acquittal on this basis even though the court

indicated that it might take judicial notice of the fact that no

automobiles are manufactured on the island of Puerto Rico (meaning

that all vehicles on the island must have traveled in interstate

commerce). The court repeatedly asked Vega if he wanted to insist

on evidence related to this element, and his counsel replied in the

affirmative, stating: "Your Honor, I am taking whatever issues I

can find." The government suggested that García's testimony that

he believed the car was manufactured in "Japan or China, I don't

know," might be sufficient, but was unsure. The court then

reopened for the limited purpose of allowing testimony as to the

car's place of manufacture.

We find no abuse of discretion in the court's decision to

reopen the case. The particular evidence presented was testimony

by an FBI agent who had secured a document from the internet

showing that the vehicle had not been manufactured in Puerto Rico

and thus had moved in interstate commerce. The document had been

provided in discovery to Vega before his trial began, and Vega

articulates no way in which its admission either disrupted or

prejudiced the proceedings. See United States v. Rouse, 111 F.3d

561, 573 (8th Cir. 1997) (finding no abuse of discretion where the

trial court allowed the government to reopen its case to establish

a jurisdictional fact that was not a surprise to defendants);

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United States v. Alderete, 614 F.2d 726, 727 (10th Cir. 1980)

(same). Although the government did not provide a compelling

explanation for its failure to introduce the interstate commerce

evidence in its primary case, the court explained:

I have a responsibility, I think, if it
were intent, if it were something that he
acted knowingly, willfully, if it were a major
element of the offense, you would have walked
out of here with a Rule 29, without a
question.
But an issue like that, when everybody
knows that a Nissan is not manufactured in
Puerto Rico, that I could take judicial notice
of that? [The government] should have
presented the evidence. I am not excusing you
for not doing it. He is an experienced
prosecutor, and he had all the obligation in
the world to do it, and he did not.
But I do think I have a major
obligation to do the right thing, and the
right thing is to reopen.

Thus, the court recognized that the government should have

presented the evidence earlier, but found beyond dispute that the

car was manufactured outside Puerto Rico. It also weighed the

evidence's probativeness against the potential prejudice, which it

rightly viewed as low, and decided to admit the evidence. We

easily conclude that the court did not abuse its discretion with

its reopening decision.

D. Sufficiency of the Evidence

Vega argues that the government did not meet its burden

of providing sufficient evidence from which a reasonable jury could

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find that he committed the carjacking. In particular, he claims

that the government "did not present a single piece of physical

evidence" to corroborate the victims' identification of appellant

at trial.

We review challenges to the sufficiency of the evidence

de novo, evaluating the evidence in the light most favorable to the

prosecution and drawing all reasonable evidentiary and credibility

inferences in favor of the verdict. United States v. Beltrán, ___

F.3d ___, 2007 WL 2685157, at *1 (1st Cir. Sept. 14, 2007). If any

rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt, the conviction stands. Id.;

United States v. Grace, 367 F.3d 29, 34 (1st Cir. 2004).5

Vega's challenge fails to undermine the jury's verdict.

First, as he conceded at oral argument, physical evidence is not a

prerequisite to a finding of guilt. See, e.g., United States v.

Peña-Lora, 225 F.3d 17, 23-24 (1st Cir. 2000) (explaining that the

uncorroborated testimony of an accomplice is a sufficient basis on

which the court may uphold a conviction). Indeed, it is likely

that the victims' identification of Vega as the perpetrator and his

confession would be sufficient to sustain his conviction. See

5
The government urges us to consider this issue waived
because Vega has not presented a developed argument contesting the
elements of the offenses on which he was convicted. Finding that
Vega does not succeed on the merits of this claim, we decline to
decide the waiver issue.

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United States v. Lebrón-Cepeda, 324 F.3d 52, 58 (1st Cir. 2003)

(suggesting that victim testimony was sufficient to dispel any

doubts arising from defendant's conflicting confessions).

However, the government also presented substantial

physical evidence that provided circumstantial corroboration of

Vega's involvement in the crimes. For example, Vega was found near

the site of the abandoned stolen car, items matching those stolen

from the scene were found near him, a black motorcycle helmet bag

with more ammunition and a gun were found in the vicinity, Vega

matched the description the victims had given the police prior to

their arrival at the scene of the stolen car, and he was carrying

a speed-loader with ammunition that matched both the caliber of the

gun used in the carjacking and the type of ammunition found in the

gun. In short, the government presented ample evidence from which

a reasonable jury could find beyond a reasonable doubt that Vega

committed the carjacking.

III.

Vega also appeals his sentence on three grounds: (1) that

the written judgment is inconsistent with the district court's oral

pronouncement at sentencing; (2) that he was not given sufficient

notice of a variance from the Guidelines range as required by

Federal Rule of Criminal Procedure 32(h), U.S.S.G. § 6A1.4, and

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Local Rule 132(b)(4);6 and (3) that the sentence itself was

unreasonable.

A. Disparity Between the Sentence Delivered Orally and By Order

Vega urges us to remand for a correction of his sentence

on the gun possession charge. Although the PSR stated that the

statutory maximum term for a violation of 18 U.S.C. § 922(k) is

sixty months, and the court stated at the sentencing hearing that

it was imposing a sixty-month term of imprisonment, the written

judgment assigns a sentence of 120 months for that offense. Where

the oral pronouncement of sentence differs from the written

judgment, this court has generally recognized the former. See

United States v. Muniz, 49 F.3d 36, 42 n.5 (1st Cir. 1995).

Moreover, given the statutory maximum, see 18 U.S.C. 924(a)(1)(B),

the court was limited to imposing a sixty-month term on this count.

The government agrees that the written order is in error. We

therefore remand to the district court to conform the written

judgment to the court's oral pronouncement.

6
Guidelines § 6A1.4 contains language virtually identical to
Federal Rule of Criminal Procedure 32(h). Puerto Rico Local Rule
132(b)(4) requires that parties seeking a sentence departure or
adjustment "submit a written motion, specifying the grounds and
legal authority in support of said request for departure and/or
adjustment . . . no later than ten (10) days prior to the scheduled
sentencing hearing . . . ."

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B. Notice of Deviation From the Guidelines

1. Notice requirement

As described above, in sentencing Vega on the carjacking

charge, the district court went outside the recommended Guidelines

range of 57 to 71 months and imposed a ten-year term of

imprisonment – more than a four-year increase above the high end of

the range. The court recognized its responsibility to consider the

factors set forth in 18 U.S.C. § 3553(a),7 and it primarily

justified the sentence based on the particularly egregious

circumstances of the crime:

This is not a regular car jacking. We are not
talking about an individual who is sitting
[at] a traffic light in the middle of town and
someone just opens the door and takes his
car. Take a look at what happened here. This
man – These two persons were sharing socially
in the privacy of the home of one of them.
And look what happened. Somebody erupts into
the house with a gun in hand. We know what
happened. . . . The car jacking is secondary
to the main event that almost caused the life
of one or . . . two of these people.
We are talking about a home invasion.
It is more than a burglary. It is more than a
robbery, a home robbery. It is unbelievable.
And it results in a car jacking and the

7
These factors include: the nature and circumstances of the
offense and the history and characteristics of the defendant; the
need for the sentence to reflect the seriousness of the offense, to
promote respect for the law, and to provide just punishment; to
afford adequate deterrence; to protect the public; and to provide
the defendant with needed educational or vocational training,
medical care, or other correctional treatment in the most effective
manner; and the kinds of sentences available.

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 shooting inside the house for no reason
whatsoever.

The court also noted Vega's previous "brushes with the law which

included violent crime allegations for which he was not convicted,

for whatever reason. But that is a fact." The court concluded

that, taking into account the relevant factors, "one is left with

the impression that the range proposed by these guidelines for the

particular circumstances of this case is not enough to meet the

necessary criteria to reflect how serious this offense was and how

just punishment should be provided."

Vega argues that this non-Guidelines sentence was

impermissible because the district court failed to comply with

Federal Rule of Criminal Procedure 32(h), which requires a

sentencing court to give the parties reasonable notice that it is

considering a departure from the Guidelines as well as the specific

grounds for that departure. See supra note 1. The rule codified

the Supreme Court's holding in Burns v. United States, 501 U.S. 129

(1991), that such notice is necessary to ensure "full adversary

testing of the issues relevant to a Guidelines sentence," id. at

135. The Court explained that, "[b]ecause the Guidelines place

essentially no limit on the number of potential factors that may

warrant a departure, no one is in a position to guess when or on

what grounds a district court might depart, much less to 'comment'

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on such a possibility in a coherent way." Id. at 136-37 (internal

citation omitted). Thus, without 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.

Id. at 137.

The language in Burns, like the language of Rule 32,

applies specifically to Guidelines departures because, at the time

the Supreme Court articulated the notice requirement, the only type

of non-Guidelines sentence available was one based on the

rationales for departure sanctioned by the Guidelines. See, e.g.,

§§ 4A1.3, 5K1.1-2.23.8 The shift from a mandatory to an advisory

8
Section 4A1.3 allows upward departures, inter alia, "[i]f
reliable information indicates that the defendant's criminal
history category substantially under-represents the seriousness of
the defendant's criminal history." Section 5 specifies various
possible grounds for departure, including when a defendant provides
substantial assistance to authorities, § 5K1.1, when an offender
characteristic not typically furnishing a basis for a departure "is
present to an exceptional degree," § 5K2.0(a)(4), and "[i]f

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Guidelines scheme post-Booker, and the corresponding addition of

"variances" to sentencing parlance, has generated a debate among

the circuits as to "whether and to what extent" Rule 32(h) and the

rationale of Burns retain force. See United States v. Wallace, 461

F.3d 15, 44 n.14 (1st Cir. 2006). Our court has not explicitly

ruled on the question, although we observed in Wallace that "it is

clearly the better practice – whether or not the legal requirement

survives Booker – for the court to provide notice to defendants

when relying on departure provisions in the advisory Guidelines not

previously identified in the PSR or in a party's pre-hearing

submission." Id.

It appears that only the Seventh Circuit has held that

Rule 32 no longer requires notice even for departures, having

concluded that, after Booker, "the concept of departures [is]

'obsolete' and 'beside the point.'" United States v. Walker, 447

F.3d 999, 1006 (7th Cir. 2006). Rule 32(h) remains in effect,

however, and the government has in other cases accepted its

continuing applicability. See, e.g., United States v. Blatstein,

482 F.3d 725, 731 (4th Cir. 2007) (finding plain error in favor of

government where government argued that "sentencing court erred in

significant physical injury resulted," § 5K2.2. The Guidelines'
Chapter 1 introduction states that the grounds for departure listed
in the Guidelines are "not exhaustive" and "that there may be other
grounds for departure that are not mentioned." U.S.S.G. Ch. 1, Pt.
A, intro. comment. 4(b). However, the Sentencing Commission
anticipated that such cases would be "highly unusual." Id.

-22-
imposing a variance sentence without providing reasonable notice of

its intent to do so"); United States v. Anati, 457 F.3d 233, 236

n.1 (2d Cir. 2006);9 United States v. Vampire Nation, 451 F.3d 189,

195 (3rd Cir. 2006).10 The remaining nine circuits that have thus

far addressed the issue have considered whether Rule 32(h) extends

to sentencing variances, as well as departures, and they have split

five to four. The Third, Fifth, Eighth and Eleventh circuits hold

that the Rule is limited to departures11; the Second, Fourth, Sixth,

Ninth and Tenth hold that it is not, and have applied the notice

9
In Anati, the court noted that the government had "indicated
its agreement with Anati's position that the District Court was
required to give notice prior to imposing a non-Guidelines
sentence." 457 F.3d at 236 n.1. That concession does not appear
limited to departures, as distinguished from variances.
10
Although the defendant Vampire Nation conceded at oral
argument that Rule 32(h) did not apply because the sentence at
issue was a variance rather than a departure, the government "took
the position that district courts should provide advance notice of
their intent to vary from a Guidelines sentencing range, regardless
of whether that variance is upward or downward." 451 F.3d at 195.
Interestingly, in Walker, the government filed a letter after oral
argument, see Fed. R. App. P. 28(j), seeking "to withdraw its
argument concerning the inapplicability of Rule 32(h) to out-of-
Guidelines sentences post-Booker" because it was contrary to
Department of Justice policy. Walker, 447 F.3d at 1007 n.7.
Department policy at that time recognized that "'due process
concerns may still require a district court to provide notice and
opportunity to be heard on any contemplated departure or imposition
of a non-Guideline sentence,'" Id. (quoting 28(j) letter).
11
See 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 (U.S. April
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), petition for cert. filed, No. 06-7517
(Oct. 26, 2006).

-23-
requirement to variances as well as departures.12 For the reasons

we elaborate below, we think the better view is that the notice

requirement survives Booker and applies to any non-Guidelines

sentence – whether imposed as a departure or as a variance.

The circuits that have concluded otherwise rely most

heavily on the rationale that the element of unfair surprise that

underlay Burns and Rule 32(h) is no longer present because

defendants are on notice post-Booker that sentencing courts have

discretion to consider any of the factors specified in § 3553(a).

See, e.g., United States v. Mejia-Huerta, 480 F.3d 713, 722 (5th

Cir. 2007), petition for cert. filed, 75 U.S.L.W. 3585 (U.S. April

18, 2007) (No. 06-1381) ("This is not an instance when the

sentencing court unexpectedly departed from a binding Guidelines

range. Rather, the district court predictably did what any

district court is empowered to do post-Booker."); United States v.

Irizarry, 458 F.3d 1208, 1212 (11th Cir. 2006), petition for cert.

filed, No. 06-7517 (Oct. 26, 2006) (similar); Vampire Nation, 451

F.3d at 196 ("Because defendants are aware that district courts

will consider the factors set forth in § 3553(a), we believe the

12
See 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).

-24-
element of 'unfair surprise' that Burns sought to eliminate is not

present.").

We find this distinction based on lack of surprise

unpersuasive. Like the other circuits that have found the Rule

32(h) notice requirement equally applicable to all non-Guidelines

sentences, we fail to see how the concern for unfair surprise

underlying the Supreme Court's decision in Burns is alleviated in

the context of post-Booker variances. The Tenth Circuit has aptly

noted the equivalence of the two settings: "Defendants are,

indeed, constructively 'on notice' of § 3553(a) factors post-

Booker. Under the previous sentencing regime, however, they were

equally aware of the specific circumstances for departure under the

Guidelines." United States v. Atencio, 476 F.3d 1099, 1104 (10th

Cir. 2007); see also, e.g., United States v. Cousins, 469 F.3d 572,

580 (6th Cir. 2006) ("We cannot discern any distinction between the

departure criteria and the § 3553(a) factors, in terms of the

notice that they provide to parties preparing for sentencing.").13

Moreover, general knowledge of the § 3553(a) factors will

not eliminate the Court's core concern in Burns – that parties have

the opportunity to expose the particular factors under

consideration to "full adversary testing." The Guidelines remain

13
Although departures could be based on grounds not explicitly
listed in the Guidelines, the Sentencing Commission, as noted
supra, anticipated that such instances would be "highly unusual."

-25-
the starting point for all sentencing post-Booker, and a court's

decision to deviate from the Guidelines range – whether up or down,

by departure or variance – still requires identification of

distinguishing factors that warrant divergence from that baseline.

See United States v. Smith, 445 F.3d 1, 4 (1st Cir. 2006) ("[A]

district court should normally begin with a guideline calculation,

and . . . after considering departures, the district court should

decide whether 'other factors' (beyond the guidelines) warranted an

ultimate sentence above or below the guideline range." (citing

United States v. Jiménez-Beltre, 440 F.3d 514, 518 (1st Cir. 2006)

(en banc))). The Court in Burns recognized that the parties'

ability to respond meaningfully to the considerations deemed

important by the district court depends upon knowing what they are

in advance. We fail to see how the need for notice is any less

acute when the court relies on the factors identified in § 3553(a)

than when it relies on the departure criteria set out in the

Guidelines.

"[N]otice of an intent to depart or vary from
the guidelines remains a critical part of
sentencing post-Booker," because "[t]here is
'essentially no limit on the number of
potential factors that may warrant a
departure' or a variance, and neither the
defendant nor the Government 'is in a position
to guess when or on what grounds a district
court might depart' or vary from the
guidelines."

Blatstein, 482 F.3d at 732 (quoting Davenport, 445 F.3d at 371

-26-
(quoting Burns, 501 U.S. at 136-37)); see also Anati, 457 F.3d at

236-37.

Indeed, the Second Circuit invoked the more general

subsection of Rule 32 on which the Supreme Court based its notice

requirement – 32(i)(1)(C) – in the course of extending the Burns

holding to variances.14 See Anati, 457 F.3d at 236; see also

Blatstein, 482 F.3d at 731-33 (noting the origin of Rule 32(h) and

referring generally to "Rule 32 notice error"). That provision

obliges a sentencing court to "allow the parties' attorneys to

comment on . . . matters relating to an appropriate sentence." The

Supreme Court concluded that Congress could not have intended

district courts to depart from the Guidelines sua sponte "without

first affording notice to the parties" because such a reading of

Rule 32(i)(1)(C) would "render[] meaningless the parties' express

right 'to comment upon . . . matters relating to the appropriate

sentence." Burns, 501 U.S. at 136. In our view, this analysis is

equally applicable to variances; thus, even without flexibly

applying Rule 32(h), whose language explicitly refers to

departures, the requirement to provide advance notice for variances

can be anchored in Rule 32.

In sum, we join the circuits that require reasonable

notice that a court is contemplating a sentence outside the

14
When the Supreme Court decided Burns, the provision was
numbered Rule 32(a)(1). See Burns, 501 U.S. at 135.

-27-
Guidelines range, whether by means of departure or variance. To

hold otherwise would be "inconsistent with Rule 32's purpose of

promoting focused, adversarial resolution of the legal and factual

issues relevant to" sentencing, id. at 137.

2. The Contours of Reasonable Notice

Our conclusion that Rule 32(h) applies to sentencing

variances is only the first step in determining whether Vega is

entitled to resentencing. The government contends that, even if

notice of a contemplated variance is required under Rule 32(h), any

error arising from the failure to notify in this instance was

harmless. The government points out that the PSR contained

statements from García and Alarcón advocating for "the greatest

term possible" for Vega and that defense counsel was given an

opportunity at the sentencing hearing to argue against a non-

Guidelines sentence. The government further notes that Vega did

not request a continuance in order to prepare a more complete

response. In sum, the government's view is that Vega suffered no

harm from the lack of prehearing notice of a possible departure or

variance.

However, we need not reach the question of harmless

error. In determining whether the district court committed any

error on the notice issue, we must examine the nature and timing of

the notice that is required. The Supreme Court in Burns explicitly

left unanswered "the question of the timing of the reasonable

-28-
notice required by Rule 32," 501 U.S. at 139 n.6, and some

discussion of the kind of notice that must be provided also is

warranted. As we explain, our consideration of these factors leads

us to conclude that, in the circumstances of this case, no error

occurred.

a. Kind of Notice

As noted, the government suggests that Vega did, in fact,

have notice that he could receive an above-Guidelines sentence

because the victim impact statements reported in his PSR urged that

he be given the maximum possible sentence. In a previous case, we

rejected the government's contention that, "because the PSR

contained a full recitation of the defendant's criminal conduct,

this put the defendant on notice of the factors on which the court

relied for the upward departure." United States v. Mangone, 105

F.3d 29, 35 (1st Cir. 1997). Any reference to the victims'

unsurprising and understandable wish that a defendant be punished

to the full extent of the law is no more revealing of the court's

inclination toward a non-Guidelines sentence and cannot satisfy the

notice requirement. Cf. Blatstein, 482 F.3d at 732 ("Burns and

Rule 32(h) do not permit a court to impose a variance sentence

without notice merely because the basis for the variance is

mentioned somewhere in the presentence documents.").

In many cases, multiple grounds for departure or variance

will be supported by the facts, and the very point of Burns is to

-29-
free parties from the burden of guessing the particular grounds on

which the court might choose to increase the sentence. When the

ground for a potential departure or variance is not explicitly

raised in either the PSR or other prehearing submission, the

district court must otherwise provide notice that "specifically

identif[ies] the ground on which [it] is contemplating an upward

departure." Burns, 501 U.S. at 138-39.15 No reference to a

possible variance was made in any pretrial submission in this case.

To the contrary, the PSR stated that "[t]he probation officer has

not identified any information that would warrant a departure from

the guidelines." Vega therefore did not receive notice before the

sentencing hearing that satisfied the requirements of Rule 32.

b. Timing

The question of timing of the notice poses the more

challenging issue in this case. Rule 32(h) requires the sentencing

court to give the parties "reasonable notice" that it is

considering a non-Guidelines sentence. One circuit has said that

this notice must be provided "not later than the outset of the

sentencing hearing," United States v. Hernandez, 251 F.3d 1247,

1251 n. 4 (9th Cir. 2001), and another has held that "notice given

15
Thus, even if the PSR indicates that a departure may be
warranted on a particular ground, the requirement of notice is not
satisfied if the district court bases its deviation on another
ground. Atencio, 476 F.3d at 1104 ("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.").

-30-
during the course of the sentencing hearing and put into effect

less than two hours later was insufficient," United States v. Cole,

496 F.3d 188, 191 (2d Cir. 2007). See also United States v.

Calzada-Maravillas, 443 F.3d 1301, 1304 (10th Cir. 2006)

(describing the "key component" of the notice requirement as

"notice in advance of the sentencing hearing"); United States v.

McCarthy, 97 F.3d 1562, 1580 (8th Cir. 1996) (holding that one day

of notice was sufficient where counsel responded and declined

additional time).

Importantly, the Supreme Court in Burns refrained from

explicitly commenting on the timing of "reasonable notice" because

the issue was not raised. See 501 U.S. at 139 n.6. Still, we

conclude that the question is largely resolved by the language of

Burns and Rule 32(h) requiring that notice be given when a court

contemplates a departure "on a ground not identified for departure

either in the presentence report or in a party's prehearing

submission." (Emphasis added.) Implicit in this language is the

understanding that Rule 32(h) notice would serve as an alternative

to the forms of prehearing notice expressly referenced. Such

notice, like the methods for which it is a substitute, should

generally be provided before the hearing. Indeed, any other

conclusion would place an unfair premium on how adroitly a lawyer

is able to respond off-the-cuff to the district court's "surprise."

-31-
 Nonetheless, we think it wise to eschew an inflexible

rule because the need for prehearing notice is more compelling in

some circumstances than others. If the court relies on record

facts that plainly were well known to counsel, and allows counsel

the opportunity to respond to its newly announced inclination to go

outside the Guidelines, notice provided at or near the outset of

the sentencing hearing could be reasonable. See United States v.

Patrick, 988 F.2d 641, 647 n.7 (6th Cir. 1993) (noting that the

Supreme Court "did not even go so far as to require notice in

advance of the sentencing hearing, but rather left open the

possibility that the notice requirement might be met simply by

notice at the hearing"); United States v. Absalon, 210 F.3d 369,

2000 WL 294449, *3 (5th Cir. 2000) (table) (holding that notice was

reasonably given where court recessed after notifying defendant at

sentencing hearing that it was considering an upward departure, and

counsel subsequently asked to proceed that day without a

continuance, because defendant "had ample opportunity to prepare

and present evidence in opposition to a departure"). In no

circumstances, however, may a court give "reasonable notice" by

offering counsel the opportunity to comment after it imposes

sentence. See Calzada-Maravillas, 443 F.3d at 1306.

Here, Vega learned of the court's intention to sentence

outside the Guidelines during the colloquy that preceded the formal

sentencing, and Vega's attorney had the opportunity to respond at

-32-
length to the court's view that a variance was warranted on the

ground that this was an atypical carjacking, involving a home

invasion. Defense counsel repeatedly urged the court to rely on

the dispassionate recommendation of the Probation Department in the

PSR, concluding his argument as follows:

Now, Your Honor, like I was saying, I
understand the horror and the fear this kind
of thing creates. All of us are human beings.
But the purpose of the guidelines is to avoid
that passion which is natural, which is
normal, to influence the sentencing procedure.
And when I hear him [the victim] I understand
what he felt. I felt it when I was car jacked
some years ago, around 20 years ago. And at
the moment all I wanted was, you know, for
this person to be[. . . .] I wanted revenge.
And that's the feeling that one gets both as
an individual and as a member of society. But
sentencing should not be ruled by that
passion.
I believe that the presentence report,
which was done in a scientific manner, so to
speak, in a technical manner takes care of the
factors that occurred. And the proper
sentence should be what is recommended in the
presentence report, which should be the 10
years for the firing of the gun. And he gets
an enhancement for the firing. It would be
five years, seven years because the gun was
fired. He gets 10 and it should be 57 to 71
months for the robbery car jacking itself.
The presentence report takes care of
all the factors and I believe this is an
appropriate sentence for what occurred. We
are not talking a light sentence. We are
talking about 15 years, which is a substantial
amount of time. My client is 31 years now.
He would be 46 years old when he comes out of
jail. We are talking about society taking out
a substantial part of my client's life for
punishment for what he did. And that would be
the summation for the defense, Your Honor.

-33-
 Although defense counsel first objected to the court's

failure to provide prehearing notice of its intent to impose a non-

Guidelines sentence when the court raised that possibility early in

the hearing, he did not say that he was unprepared to respond to

the court's rationale and did not seek a continuance. Cf. Anati,

457 F.3d at 235, 237 (remanding for resentencing where district

court rejected defense counsel's request for a "'brief adjournment

to respond'" to sua sponte sentence above Guidelines range based on

court's view of "'the deleterious impact of heroin in our

communities'"). Importantly, the district court relied solely on

the well known facts of the crime and the obvious conclusion that

this was not a classic carjacking. Even on appeal, Vega offers no

argument beyond that made by counsel at the hearing to refute the

court's judgment that an enhanced sentence was warranted based on

the nature of the crime.

At the heart of Rule 32's notice requirement
is the principle that a defendant should be
sentenced only after "focused, adversarial
development of the factual and legal issues
relevant to determining the appropriate
Guidelines sentence."

United States v. Meeker, 411 F.3d 736, 745 (6th Cir. 2005) (quoting

Burns, 501 U.S. at 134). We are satisfied that, in the

circumstances of this case, Vega received the "reasonable notice"

required by Burns and Rule 32.16

16
In leaving the timing of reasonable notice to the lower
courts, the Supreme Court observed that they might choose "to adopt

-34-
C. Reasonableness of the Sentence

Vega's claim that his sentence is unreasonable is of

necessity limited to the above-Guidelines term of imprisonment

imposed on the carjacking count. This is so because Count Two,

which charged use of a firearm in the carjacking, carried a

mandatory minimum ten-year term, and the sixty-month concurrent

term imposed on Count Three effectively was subsumed within the

term imposed on the carjacking. Thus, only a modification of the

carjacking sentence would be both permissible and of consequence.

Our review of a district court's sentencing decision

post-Booker "focuses on whether the court has 'adequately explained

its reasons for varying or declining to vary from the guidelines

and whether the result is within reasonable limits,'" United States

v. Dixon, 449 F.3d 194, 204 (1st Cir. 2006) (quoting United States

v. Scherrer, 444 F.3d 91, 93 (1st Cir. 2006) (en banc)); see also

United States v. Jiménez-Beltre, 440 F.3d 514, 519 (1st Cir. 2006)

appropriate procedures by local rule," Burns, 501 U.S. at 139 n.6;
see United States v. Hernandez, 251 F.3d 1247, 1251 (9th Cir. 2001)
("[W]e leave to the individual districts the task of fashioning
rules detailing when their courts must give notice of an intent to
depart."). Puerto Rico Local Rule 132(b)(4) requires that parties
seeking a departure or adjustment must submit a written motion at
least ten days before the sentencing hearing, "specifying the
grounds and legal authority in support of said request." Vega
makes no developed argument about the applicability of that rule to
the facts of this case, and we do not consider it, see United
States v. Hansen, 434 F.3d 92, 105 (1st Cir. 2006), other than to
note that the rule's insistence on advance notice of a requested
departure or adjustment is consistent with our conclusions about
the importance of prehearing notice.

-35-
(en banc). If the court has made no legal error and "has offered

a plausible explication of its ultimate sentencing decision, we are

quite respectful of that decision." Dixon, 449 F.3d at 204.

Vega argues that his sentence is unreasonable because it

is greater than necessary to achieve the purposes of sentencing set

forth in 18 U.S.C. § 3553(a), which include the need "to reflect

the seriousness of the offense" and "to provide just punishment for

the offense." He further contends that the court failed to take

into account his "extraordinary family circumstances," including

his father's recent death, his own drug addiction, and the impact

of the criminal proceedings on his children and other family

members.

As quoted above, the district court explained at length

its view that the circumstances of this case were exceptional –

involving a home invasion in the middle of the night and a near-

miss shooting of one of the victims. Vega does not dispute the

characterization of this carjacking as unusually violent and risky.

The court further pointed to Vega's admittedly violent past.

Although the court did not discuss the family circumstances Vega

now cites, Vega did not assert these factors at the sentencing

hearing to support his request for a lenient sentence.17 We also

17
Counsel asked the court to impose a sentence at the low end
of the Guidelines range of 57 to 71 months, stating:

I believe 57 months will be an adequate sentence when
taking into consideration that he will end up serving

-36-
note that, despite its view that this was an exceptionally serious

crime, the court did not impose the statutory maximum term of

fifteen years.

This context persuades us that no sentencing error

occurred; the court offered an "entirely plausible explication of

why it chose [this] sentence," Dixon, 449 F.3d at 205, and,

particularly in light of the deferential standard of review, we

have no doubt that "the sentence falls within the realm of

reasonableness," id. at 206.

IV.

We briefly summarize our holdings:

(1) Vega waived his claim relating to the victims'

pretrial identification of him as the perpetrator by failing to

file a pretrial suppression motion;

(2) The district court's finding that Vega's confession

was voluntary, and therefore admissible, was amply supported by the

evidence presented at the suppression hearing, including Vega's

signed waiver and his own testimony;

(3) The court properly reopened the case to allow the

government to introduce evidence of the interstate commerce element

of the carjacking crime;

almost 15 years for this offense, which is adequate
punishment. I don't think that 71 months for that
particular offense should be imposed. And that will be
it, Your Honor.

-37-
 (4) The evidence presented at trial, including the

victims' identification of Vega, his confession, and physical

evidence found near the site of the abandoned stolen car, was

sufficient to allow a jury to find beyond a reasonable doubt that

Vega committed the carjacking;

(5) Although the case must be remanded so that the

district court may conform the written sentencing judgment on the

gun possession charge to the oral pronouncement of a sixty-month

sentence, Vega's above-Guidelines sentence on the carjacking count

was both reasonable and imposed with reasonable notice.

We therefore affirm Vega's conviction and sentence, but

remand for correction of the district court's written judgment.

So ordered.

-38-