Irizarry v. United States

(Slip Opinion) OCTOBER TERM, 2007 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

IRIZARRY v. UNITED STATES

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE ELEVENTH CIRCUIT

No. 06–7517. Argued April 15, 2008—Decided June 12, 2008
Petitioner pleaded guilty to making a threatening interstate communi-
cation to his ex-wife, in violation of federal law. Although the presen-
tence report recommended a Federal Sentencing Guidelines range of
41-to-51 months in prison, the court imposed the statutory maximum
sentence—60 months in prison and 3 years of supervised release—
rejecting petitioner’s objection that he was entitled to notice that the
court was contemplating an upward departure. The Eleventh Circuit
affirmed, reasoning that Federal Rule of Criminal Procedure 32(h),
which states that “[b]efore the court may depart from the applicable
sentencing range on a ground not identified . . . either in the presen-
tence report or in a party’s pre-hearing submission, the court must
give the parties reasonable notice that it is contemplating such a de-
parture,” did not apply because the sentence was a variance, not a
Guidelines departure.
Held: Rule 32(h) does not apply to a variance from a recommended
Guidelines range. At the time that Burns v. United States, 501 U. S.
129, was decided, prompting Rule 32(h)’s promulgation, the Guide-
lines were mandatory; the Sentencing Reform Act of 1984 prohibited
district courts from disregarding most of the Guidelines’ “mechanical
dictates,” id., at 133. Confronted with the constitutional problems
that might otherwise arise, the Burns Court held that the Rule 32
provision allowing parties to comment on the appropriate sentence—
now Rule 32(i)(1)(C)—would be “render[ed] meaningless” unless the
defendant were given notice of a contemplated departure. Id. at 135–
136. Any constitutionally protected expectation that a defendant will
receive a sentence within the presumptively applicable Guidelines
range did not, however, survive United States v. Booker, 543 U. S.
220, which invalidated the Guidelines’ mandatory features. Faced
2 IRIZARRY v. UNITED STATES

Syllabus

with advisory Guidelines, neither the Government nor the defendant
may place the same degree of reliance on the type of “expectancy”
that gave rise to a special need for notice in Burns. Indeed, a sen-
tence outside the Guidelines carries no presumption of unreason-
ableness. Gall v. United States, 552 U. S. ___, ___. Thus, the due
process concerns motivating the Court to require notice in a manda-
tory Guidelines world no longer provide a basis for extending the
Burns rule either through an interpretation of Rule 32(h) itself or
through Rule 32(i)(C)(1). Nor does the rule apply to 18 U. S. C. §3553
variances by its terms. Although the Guidelines, as the “starting
point and the initial benchmark,” continue to play a role in the sen-
tencing determination, see Gall, 552 U. S., at ___, there is no longer a
limit comparable to the one in Burns on variances from Guidelines
ranges that a district court may find justified. This Court is confi-
dent that district judges and counsel have the ability—especially in
light of Rule 32’s other procedural protections—to make sure that all
relevant matters relating to a sentencing decision have been consid-
ered before a final determination is made. Pp. 5–8.
458 F. 3d 1208, affirmed.

STEVENS, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and SCALIA, THOMAS, and ALITO, JJ., joined. THOMAS, J., filed a
concurring opinion. BREYER, J., filed a dissenting opinion, in which
KENNEDY, SOUTER, and GINSBURG, JJ., joined.
 Cite as: 553 U. S. ____ (2008) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
_________________

No. 06–7517
_________________

RICHARD IRIZARRY, PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

[June 12, 2008]

JUSTICE STEVENS delivered the opinion of the Court.
Rule 32(h) of the Federal Rules of Criminal Procedure,
promulgated in response to our decision in Burns v.
United States, 501 U. S. 129 (1991), states that “[b]efore
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 question presented
by this case is whether that Rule applies to every sentence
that is a variance from the recommended Federal Sen-
tencing Guidelines range even though not considered a
“departure” as that term was used when Rule 32(h) was
promulgated.
I
Petitioner, Richard Irizarry, pleaded guilty to one count
of making a threatening interstate communication, in
violation of 18 U. S. C. §875(c). Petitioner made the fol-
lowing admissions in the factual resume accompanying his
plea: (1) On November 5, 2003, he sent an e-mail threaten-
ing to kill his ex-wife and her new husband; (2) he had
sent “dozens” of similar e-mails in violation of a restrain-
2 IRIZARRY v. UNITED STATES

Opinion of the Court

ing order; (3) he intended the e-mails to “convey true
threats to kill or injure multiple persons”; and (4) at all
times he acted knowingly and willfully. App. 273–275.
The presentence report (PSR), in addition to describing
the threatening e-mails, reported that petitioner had
asked another inmate to kill his ex-wife’s new husband.
Brief for United States 6. The PSR advised against an
adjustment for acceptance of responsibility and recom-
mended a Guidelines sentencing range of 41-to-51 months
of imprisonment, based on enhancements for violating
court protective orders, making multiple threats, and
intending to carry out those threats. Brief for Petitioner 9.
As possible grounds for a departure, the probation officer
stated that petitioner’s criminal history category might
not adequately reflect his “ ‘past criminal conduct or the
likelihood that [petitioner] will commit other crimes.’ ”
Ibid.
The Government made no objection to the PSR, but
advised the court that it intended to call petitioner’s ex-
wife as a witness at the sentencing hearing. App. 293.
Petitioner objected to the PSR’s application of the en-
hancement based on his intention to carry out the threats
and its rejection of an adjustment for acceptance of re-
sponsibility. Id., at 295–296.
Four witnesses testified at the sentencing hearing. Id.,
at 299. Petitioner’s ex-wife described incidents of domestic
violence, the basis for the restraining order against peti-
tioner, and the threats petitioner made against her and
her family and friends. Id., at 307, 309, 314. She empha-
sized at some length her genuine concern that petitioner
fully intended to carry out his threats. Id., at 320. A
special agent of the Federal Bureau of Investigation was
called to describe documents recovered from petitioner’s
vehicle when he was arrested; those documents indicated
he intended to track down his ex-wife and their children.
Id., at 326–328. Petitioner’s cellmate next testified that
 Cite as: 553 U. S. ____ (2008) 3

Opinion of the Court

petitioner “was obsessed with the idea of getting rid of” his
ex-wife’s husband. Id., at 336. Finally, petitioner testified
at some length, stating that he accepted responsibility for
the e-mails, but that he did not really intend to carry out
his threats. Id., at 361. Petitioner also denied speaking to
his cellmate about killing his ex-wife’s husband. Id., at
356–357.
After hearing from counsel, the trial judge delivered a
thoughtful oral decision, which included findings resolving
certain disputed issues of fact. She found that petitioner
had deliberately terrorized his ex-wife, that he intended to
carry out one or more of his threats, “that he still intends
to terrorize Ms. Smith by whatever means he can and that
he does not accept responsibility for what he has done.”
Id., at 372. After giving both petitioner and counsel
an opportunity to make further comment, the judge
concluded:
“I’ve considered all of the evidence presented today,
I’ve considered everything that’s in the presentence
report, and I’ve considered the statutory purpose of
sentencing and the sentencing guideline range. I find
the guideline range is not appropriate in this case. I
find Mr. Irizarry’s conduct most disturbing. I am sin-
cerely convinced that he will continue, as his ex-wife
testified, in this conduct regardless of what this court
does and regardless of what kind of supervision he’s
under. And based upon that, I find that the maxi-
mum time that he can be incapacitated is what is best
for society, and therefore the guideline range, I think,
is not high enough.
“The guideline range goes up to 51 months, which is
only nine months shorter than the statutory maxi-
mum. But I think in Mr. Irizarry’s case the statutory
maximum is what’s appropriate, and that’s what I’m
going to sentence him.” Id., at 374–375.
4 IRIZARRY v. UNITED STATES

Opinion of the Court

The court imposed a sentence of 60 months of imprison-
ment to be followed by a 3-year term of supervised release.
Id., at 375.
Defense counsel then raised the objection that presents
the issue before us today. He stated, “We didn’t have
notice of [the court’s] intent to upwardly depart. What the
law is on that now with—,” to which the Court responded,
“I think the law on that is out the window. . . . You had
notice that the guidelines were only advisory and the court
could sentence anywhere within the statutory range.” Id.,
at 377.
The Court of Appeals for the Eleventh Circuit affirmed
petitioner’s sentence, reasoning that Rule 32(h) did not
apply because “the above-guidelines sentence imposed by
the district court in this case was a variance, not a guide-
lines departure.” 458 F. 3d 1208, 1211 (2006) (per cu-
riam). The Court of Appeals declined to extend the rule to
variances. “After [United States v. Booker, 543 U. S. 220
(2005),] parties are inherently on notice that the sentenc-
ing guidelines range is advisory. . . . Given Booker, parties
cannot claim unfair surprise or inability to present in-
formed comment.” Id., at 1212.
Because the Courts of Appeals are divided with respect
to the applicability of Rule 32(h) to Guidelines variances,1
we granted certiorari. 552 U. S. ___ (2008). We now
affirm.

——————
1 Compare United States v. Vega-Santiago, 519 F. 3d 1 (CA1 2008) (en

banc); United States v. Vampire Nation, 451 F. 3d 189 (CA3 2006);
United States v. Mejia-Huerta, 480 F. 3d 713 (CA5 2007); United States
v. Long Soldier, 431 F. 3d 1120 (CA8 2005); and United States v.
Walker, 447 F. 3d 999, 1006 (CA7 2006), with United States v. Anati,
457 F. 3d 233 (CA2 2006); United States v. Davenport, 445 F. 3d 366
(CA4 2006); United States v. Cousins, 469 F. 3d 572 (CA6 2006); United
States v. Evans-Martinez, 448 F. 3d 1163 (CA9 2006); and United States
v. Atencio, 476 F. 3d 1099 (CA10 2007).
 Cite as: 553 U. S. ____ (2008) 5

Opinion of the Court

II
At the time of our decision in Burns, the Guidelines
were mandatory; the Sentencing Reform Act of 1984, §211
et seq., 98 Stat. 1987, prohibited district courts from disre-
garding “the mechanical dictates of the Guidelines” except
in narrowly defined circumstances. 501 U. S., at 133.
Confronted with the constitutional problems that might
otherwise arise, we held that the provision of Rule 32 that
allowed parties an opportunity to comment on the appro-
priate sentence—now Rule 32(i)(1)(C)—would be “ren-
der[ed] meaningless” unless the defendant were given
notice of any contemplated departure. Id., at 135–136.
JUSTICE SOUTER disagreed with our conclusion with re-
spect to the text of Rule 32 and conducted a due process
analysis. Id., at 147 (dissenting opinion).
Any expectation subject to due process protection at the
time we decided Burns that a criminal defendant would
receive a sentence within the presumptively applicable
guideline range did not survive our decision in United
States v. Booker, 543 U. S. 220 (2005), which invalidated
the mandatory features of the Guidelines. Now faced with
advisory Guidelines, neither the Government nor the
defendant may place the same degree of reliance on the
type of “expectancy” that gave rise to a special need for
notice in Burns. Indeed, a sentence outside the Guidelines
carries no presumption of unreasonableness. Gall v.
United States, 552 U. S. ___, ___ (2007) (slip op., at 12); see
also Rita v. United States, 551 U. S. ___ (2007).
It is, therefore, no longer the case that “were we to read
Rule 32 to dispense with notice [of a contemplated non-
Guidelines sentence], we would then have to confront the
serious question whether [such] notice in this setting is
mandated by the Due Process Clause.” Burns, 501 U. S.,
at 138. The due process concerns that motivated the
Court to require notice in a world of mandatory Guidelines
no longer provide a basis for this Court to extend the rule
6 IRIZARRY v. UNITED STATES

Opinion of the Court

set forth in Burns either through an interpretation of Rule
32(h) itself or through Rule 32(i)(1)(C). And contrary to
what the dissent argues, post, at 1–2 (opinion of BREYER,
J.), the rule does not apply to §3553 variances by its terms.
“Departure” is a term of art under the Guidelines and
refers only to non-Guidelines sentences imposed under the
framework set out in the Guidelines.
The notice requirement set out in Burns applied to a
narrow category of cases. The only relevant departures
were those authorized by 18 U. S. C. §3553(b) (1988 ed.),
which required “an aggravating or mitigating circum-
stance of a kind, or to a degree, not adequately taken into
consideration by the Sentencing Commission in formulat-
ing the guidelines that should result in a sentence differ-
ent from that described.” That determination could only
be made based on “the sentencing guidelines, policy
statements, and official commentary of the Sentencing
Commission.” Ibid. And the notice requirement only
applied to the subcategory of those departures that were
based on “a ground not identified as a ground for . . . de-
parture either in the presentence report or in a pre-
hearing submission.” Burns, 501 U. S., at 138–139; see
also Fed. Rule Crim. Proc. 32(h). Although the Guidelines,
as the “starting point and the initial benchmark,” continue
to play a role in the sentencing determination, see Gall,
552 U. S., at ___ (slip op., at 11), there is no longer a limit
comparable to the one at issue in Burns on the variances
from Guidelines ranges that a District Court may find
justified under the sentencing factors set forth in 18
U. S. C. §3553(a) (2000 ed. and Supp. V).
Rule 32(i)(1)(C) requires the district court to allow the
parties to comment on “matters relating to an appropriate
sentence,” and given the scope of the issues that may be
considered at a sentencing hearing, a judge will normally
be well-advised to withhold her final judgment until after
the parties have had a full opportunity to present their
 Cite as: 553 U. S. ____ (2008) 7

Opinion of the Court

evidence and their arguments. Sentencing is “a fluid and
dynamic process and the court itself may not know until
the end whether a variance will be adopted, let alone on
what grounds.” United States v. Vega-Santiago, 519 F. 3d
1, 4 (CA1 2008) (en banc). Adding a special notice re-
quirement whenever a judge is contemplating a variance
may create unnecessary delay; a judge who concludes
during the sentencing hearing that a variance is appropri-
ate may be forced to continue the hearing even where the
content of the Rule 32(h) notice would not affect the par-
ties’ presentation of argument and evidence. In the case
before us today, even if we assume that the judge had
contemplated a variance before the sentencing hearing
began, the record does not indicate that a statement an-
nouncing that possibility would have changed the parties’
presentations in any material way; nor do we think it
would in most cases. The Government admits as much in
arguing that the error here was harmless. Brief for
United States 37–38.
Sound practice dictates that judges in all cases should
make sure that the information provided to the parties in
advance of the hearing, and in the hearing itself, has given
them an adequate opportunity to confront and debate the
relevant issues. We recognize that there will be some
cases in which the factual basis for a particular sentence
will come as a surprise to a defendant or the Government.
The more appropriate response to such a problem is not to
extend the reach of Rule 32(h)’s notice requirement cate-
gorically, but rather for a district judge to consider grant-
ing a continuance when a party has a legitimate basis for
claiming that the surprise was prejudicial. As Judge
Boudin has noted,
“In the normal case a competent lawyer . . . will an-
ticipate most of what might occur at the sentencing
hearing—based on the trial, the pre-sentence report,
8 IRIZARRY v. UNITED STATES

Opinion of the Court

the exchanges of the parties concerning the report,
and the preparation of mitigation evidence. Garden
variety considerations of culpability, criminal history,
likelihood of re-offense, seriousness of the crime, na-
ture of the conduct and so forth should not generally
come as a surprise to trial lawyers who have prepared
for sentencing.” Vega-Santiago, 519 F. 3d, at 5.
The fact that Rule 32(h) remains in effect today does not
justify extending its protections to variances; the justifica-
tion for our decision in Burns no longer exists and such an
extension is apt to complicate rather than to simplify
sentencing procedures. We have confidence in the ability
of district judges and counsel—especially in light of Rule
32’s other procedural protections2—to make sure that all
relevant matters relating to a sentencing decision have
been considered before the final sentencing determination
is made.
The judgment of the Court of Appeals is affirmed.

It is so ordered.

——————
2 Rule 32 requires that a defendant be given a copy of his PSR at least

35 days before sentencing, Fed. Rule Crim. Proc. 32(e)(2). Further,
each party has 14 days to object to the PSR, Rule 32(f)(1), and at least 7
days before sentencing the probation officer must submit a final version
of the PSR to the parties, stating any unresolved objections, Rule 32(g).
Finally, at sentencing, the parties must be allowed to comment on
“matters relating to an appropriate sentence,” Rule 32(i)(1)(C), and the
defendant must be given an opportunity to speak and present mitiga-
tion testimony, Rule 32(i)(4)(A)(ii).
 Cite as: 553 U. S. ____ (2008) 1

THOMAS, J., concurring

SUPREME COURT OF THE UNITED STATES
_________________

No. 06–7517
_________________

RICHARD IRIZARRY, PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

[June 12, 2008]

JUSTICE THOMAS, concurring.
Earlier this Term, I explained that because “there is no
principled way to apply the Booker remedy,” it is “best to
apply the statute as written, including 18 U. S. C.
§3553(b), which makes the [Federal Sentencing] Guide-
lines mandatory.” Kimbrough v. United States, 552 U. S.
___, ___ (2007) (slip op., at 3) (dissenting opinion) (refer-
encing United States v. Booker, 543 U. S. 220, 258–265
(2005)); see also Gall v. United States, 552 U. S. ___ (2007)
(slip op., at 1) (THOMAS, J., dissenting) (applying the
Guidelines as mandatory). Consistent with that view, I
would hold that the District Court committed statutory
error when it imposed a sentence at “variance” with the
Guidelines in a manner not authorized by the text of the
Guidelines, which permit sentences outside the Guide-
lines, or “departures,” only when certain aggravating or
mitigating circumstances are present. See United States
Sentencing Commission, Guidelines Manual §1B1.1 (Nov.
2007). But the issue whether such post-Booker “variances”
are permissible is not currently before us.
Rather, we are presented with the narrow question
whether Federal Rule of Criminal Procedure 32(h) re-
quires a judge to give notice before he imposes a sentence
outside the Guidelines on a ground not identified in the
presentence report or in a prehearing submission by the
Government. I agree with the Court that neither Rule
2 IRIZARRY v. UNITED STATES

THOMAS, J., concurring

32(h) nor Burns v. United States, 501 U. S. 129 (1991),
compels a judge to provide notice before imposing a sen-
tence at “variance” with the post-Booker advisory Guide-
lines, ante, at 8. Each addresses only “departures” under
the mandatory Guidelines and does not contemplate the
drastic changes to federal sentencing wrought by the
Booker remedy. For this reason, I join the Court’s opinion.
 Cite as: 553 U. S. ____ (2008) 1

BREYER, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

No. 06–7517
_________________

RICHARD IRIZARRY, PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

[June 12, 2008]

JUSTICE BREYER, with whom JUSTICE KENNEDY,
JUSTICE SOUTER, and JUSTICE GINSBURG join, dissenting.
Federal Rule of Criminal Procedure 32(h) says:
“Before the court may depart from the applicable sen-
tencing range on a ground not identified for depar-
ture either in the presentence report or in a party’s
prehearing submission, the court must give the par-
ties reasonable notice that it is contemplating such a
departure.”
The question before us is whether this Rule applies when
a sentencing judge decides, pursuant to 18 U. S. C.
§3553(a) (2000 ed. and Supp. V), to impose a sentence that
is a “variance” from the advisory Guidelines, but is not a
“departure” within the Guidelines. The Court says that
the Rule does not apply. I disagree.
The Court creates a legal distinction without much of a
difference. The Rule speaks specifically of “departure[s],”
but I see no reason why that term should not be read to
encompass what the Court calls §3553(a) “variances.” The
Guidelines define “departure” to mean “imposition of a
sentence outside the applicable guideline range or of a
sentence that is otherwise different from the guideline
sentence.” United States Sentencing Commission, Guide-
lines Manual (USSG), §1B1.1, comment., n. 1(E) (Nov.
2007). So-called variances fall comfortably within this
2 IRIZARRY v. UNITED STATES

BREYER, J., dissenting

definition. Variances are also consistent with the ordinary
meaning of the term “departure.” See, e.g., Webster’s
Third New International Dictionary 604 (1993) (defining
“departure” to mean a “deviation or divergence esp. from a
rule” (def. 5a)). And conceptually speaking, the substan-
tive difference between a “variance” and a “departure” is
nonexistent, as this Court’s opinions themselves make
clear. See, e.g., Gall v. United States, 552 U. S. ___, ___–
___ (2007) (slip op., at 7―8) (using the term “departure” to
describe any non-Guideline sentence); Rita v. United
States, 551 U. S. ___, ___–___ (2007) (slip op., at 10) (stat-
ing that courts “may depart (either pursuant to the Guide-
lines or, since Booker, by imposing a non-Guidelines
sentence)”).
Of course, when Rule 32(h) was written, its drafters had
only Guidelines-authorized departures in mind: Rule 32(h)
was written after the Guidelines took effect but before this
Court decided United States v. Booker, 543 U. S. 220
(2005). Yet the language of a statute or a rule, read in
light of its purpose, often applies to circumstances that its
authors did not then foresee. See, e.g., Oncale v. Sun-
downer Offshore Services, Inc., 523 U. S. 75, 79–80 (1998).
And here, the purpose behind Rule 32(h) requires that
the Rule be construed to apply to variances. That Rule
was added to “reflect” our decision in Burns v. United
States, 501 U. S. 129 (1991). See Advisory Committee’s
Notes on Fed. Rule Crim. Proc. 32, 18 U. S. C. App.,
p. 1141 (2000 ed., Supp. II). (2002 Amendments). In
Burns, the Court focused upon “the extraordinary case in
which the district court, on its own initiative and contrary
to the expectations both the defendant and the Govern-
ment, decides that the factual and legal predicates for a
departure are satisfied.” 501 U. S., at 135. The Court
held that “before a district court can depart upward on a
ground not identified as a ground for upward departure
either in the presentence report or in a prehearing sub-
 Cite as: 553 U. S. ____ (2008) 3

BREYER, J., dissenting

mission by the Government . . . the district court [must]
give the parties reasonable notice that it is contemplating
such a ruling.” Id., at 138.
Our holding in Burns was motivated, in part, by a desire
to avoid due process concerns. See 501 U. S., at 138
(“[W]ere we to read Rule 32 to dispense with notice, we
would then have to confront the serious question whether
notice in this setting is mandated by the Due Process
Clause”). That is perhaps why the majority today sug-
gests that “[a]ny expectation subject to due process protec-
tion at the time we decided Burns” failed to survive
Booker. Ante, at 5. But the due process concern was not
the only reason for our holding in Burns, nor was it even
the primary one. Rather, the Court principally based its
decision upon Rule 32’s requirement that parties be given
“ ‘an opportunity to comment upon . . . matters relating to
the appropriate sentence.’ ” 501 U. S., at 135 (citing then-
Rule 32(a)(1)). “Obviously,” the Court said, whether a
sua sponte departure was warranted was a “matter relat-
ing to the appropriate sentence.” Ibid. (internal quotation
marks omitted). To deprive the parties of notice of such a
departure would thus “rende[r] meaningless” their right to
comment on “matters relating to the appropriate sen-
tence.” Id., at 136 (internal quotation marks omitted).
Notice, the Court added, was “essential to assuring proce-
dural fairness.” Id., at 138.
The Court’s decision in Burns also relied on what the
Court described as Rule 32’s overall purpose of
“provid[ing] for focused, adversarial development of the
factual and legal issues” related to sentencing. Id., at 134.
This could be gleaned, inter alia, from the requirement
that parties be given an opportunity to file responses or
objections to the presentence report and from the re-
quirement that parties be given an opportunity to speak at
the sentencing proceeding. Ibid. Construing Rule 32 not
to require notice of sua sponte departures, the Court rea-
4 IRIZARRY v. UNITED STATES

BREYER, J., dissenting

soned, would be “inconsistent with Rule 32’s purpose of
promoting focused, adversarial resolution” of sentencing
issues. Id., at 137.
The primary grounds for the Court’s decision in Burns
apply with equal force to the variances we consider here.
Today, Rule 32(i)(1)(C) provides a virtually identical re-
quirement that the district court “allow the parties’ attor-
neys to comment on the probation officer’s determinations
and other matters relating to an appropriate sentence.”
(Emphasis added.) To deprive the parties of notice of
previously unidentified grounds for a variance would
today “rende[r] meaningless” the parties’ right to comment
on “matters relating to [an] appropriate sentence.” Burns,
501 U. S., at 136 (internal quotation marks omitted). To
deprive the parties of notice would today subvert Rule 32’s
purpose of “promoting focused, adversarial resolution” of
sentencing issues. In a word, it is not fair. Id., at 137.
Seeking to overcome the fact that text, purpose, and
precedent are not on its side, the majority makes two
practical arguments in its defense. First, it says that
notice is unnecessary because “there is no longer a limit
comparable to the one at issue in Burns” as to the number
of reasons why a district court might sua sponte impose a
sentence outside the applicable range. Ante, at 6. Is that
so? Courts, while now free to impose sentences that vary
from a Guideline-specified range, have always been free to
depart from such a range. See USSG ch. 1, pt. A, §4(b)
(Nov. 1987), reprinted in §1A1.1 comment., editorial note
(Nov. 2007) (suggesting broad departure authority). In-
deed, even Burns recognized that “the Guidelines place
essentially no limit on the number of potential factors that
may warrant a departure.” 501 U. S., 136–137 (citing
USSG ch. 1, pt. A, §4(b) (1990)). Regardless, if Booker
expanded the number of grounds on which a district court
may impose a non-Guideline sentence, that would seem to
be an additional argument in favor of, not against, giving
 Cite as: 553 U. S. ____ (2008) 5

BREYER, J., dissenting

the parties notice of the district court’s intention to impose
a non-Guideline sentence for some previously unidentified
reason. Notice, after all, would promote “focused, adver-
sarial” litigation at sentencing. Burns, supra, at 134, 137.
Second, the majority fears that a notice requirement
would unnecessarily “delay” and “complicate” sentencing.
Ante, at 7, 8. But this concern seems exaggerated. Rule
32(h) applies only where the court seeks to depart on a
ground not previously identified by the presentence report
or the parties’ presentencing submissions. And the Solici-
tor General, after consulting with federal prosecutors, tells
us that “in the vast majority of cases in which a district
court imposes a sentence outside the Guidelines range, the
grounds for the variance have previously been identified
by the [presentence report] or the parties.” Brief for
United States 32.
In the remaining cases, notice does not necessarily mean
delay. The parties may well be prepared to address the
point and a meaningful continuance of sentencing would
likely be in order only where a party would adduce addi-
tional evidence or brief an unconsidered legal issue. Fur-
ther, to the extent that district judges find a notice re-
quirement to complicate sentencing, those judges could
make use of Rule 32(d)(2)(F), which enables them to re-
quire that presentence reports address the sentence that
would be appropriate in light of the §3553(a) factors (in-
cluding, presumably, whether there exist grounds for
imposing a non-Guidelines sentence). If a presentence
report includes a section on whether a variance would be
appropriate under §3553(a), that would likely eliminate
the possibility that the district court would wind up impos-
ing a non-Guidelines sentence for some reason not previ-
ously identified.
Finally, if notice still produced some burdens and delay,
fairness justifies notice regardless. Indeed, the Govern-
ment and the defendant here—the parties most directly
6 IRIZARRY v. UNITED STATES

BREYER, J., dissenting

affected by sentencing—both urge the Court to find a
notice requirement. Clearly they recognize, as did the
Court in Burns, that notice is “essential to assuring proce-
dural fairness” at sentencing. 501 U. S., at 138.
I believe that Rule 32(h) provides this procedural safe-
guard. And I would vacate and remand to the Court of
Appeals so that it could determine whether the petitioner
received the required notice and, if not, act accordingly.
I respectfully dissent.