# Burns v. United States (501 U.S. 129)

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## Dissenting Opinion

    Souter
United States Supreme Court
501 U.S. 129
Burns v. United States
No. 89-7260 Argued: Dec. 3, 1990. --- Decided: June 13, 1991
Syllabus
A plea agreement with the Government recited that petitioner Burns would plead guilty to three counts and stated the parties' expectation that his sentence would fall within a particular offense-level/criminal-history range under the United States Sentencing Commission's Guidelines. The probation officer, as required by Federal Rule of Criminal Procedure 32, filed a presentence report in which he confirmed the parties' expectation that the sentencing range would be 30 to 37 months and concluded that there were no factors that would warrant departure from the Guidelines sentence. Although neither party filed any objections to the report, the District Court announced, at the end of the sentencing hearing, that it was departing upward from the Guidelines range and, based upon three grounds, sentenced Burns to 60 months' imprisonment. The Court of Appeals affirmed the sentence, concluding that, although subdivision (a)(1) of Rule 32 requires a district court to afford the parties "an opportunity to comment upon the probation officer's determination and on other matters relating to the appropriate sentence" at the sentencing hearing, it would be inappropriate to impose on a district court a requirement that it notify the parties of its intent to make a sua sponte departure from the Guidelines in the absence of express language to that effect.
Held: Before a district court can depart upward from the applicable Guidelines range on a ground not identified as a ground for such departure either in the presentence report or in a prehearing submission by the Government, Rule 32 requires that the court give the parties reasonable notice that it is contemplating such a ruling, specifically identifying the ground for the departure. Pp. 132-139.
(a) In order to eliminate the unwarranted disparities and uncertainty associated with indeterminate sentencing under the pre-existing system, the Sentencing Reform Act of 1984 requires district courts to determine sentences based on the various offense- and offender-related factors identified by the Guidelines. Under the Act, a district court may disregard the Guidelines' mechanical dictates only upon finding an aggravating or mitigating circumstance not adequately considered by the Commission. The Act amended Rule 32 to assure focused, adversarial development of the factual and legal issues relevant to determining the appropriate Guidelines sentence. Although, ordinarily, the presentence report or the Government's recommendation will notify the defendant that an upward departure will be at issue and of the facts that allegedly support it, that will not be the case where, as here, the district court departs sua sponte from the Guidelines sentencing range. Pp. 132-135.
(b) The textual and contextual evidence of legislative intent indicates that Congress did not intend a district court to depart from the Guidelines sua sponte without first affording notice to the parties. The Government's contrary reading renders meaningless the parties' express right under Rule 32(a)(1) to "comment upon [relevant] matters," since the right to comment upon a departure has little reality or worth unless one is informed that a decision is contemplated. The Government's reading is also inconsistent with Rule 32's purpose. Under the Government's interpretation of Rule 32, a critical sentencing determination would go untested by the adversarial process in every case in which the parties, lacking notice, failed to anticipate an unannounced and uninvited departure by the district court from the Guidelines. Furthermore, the meaning that the Government attaches to Congress' silence is contrary to decisions in which, despite the absence of express statutory language, this Court has construed statutes authorizing analogous deprivations of liberty or property to require that the Government give affected individuals both notice and a meaningful opportunity to be heard. See, e.g., American Power & Light Co. v. SEC, 329 U.S. 90, 107-108, 67 S.Ct. 133, 143-144, 91 L.Ed. 103. Since the Government's interpretation would require this Court to confront the serious question whether notice is mandated by the Due Process Clause, the Court will not construe Rule 32 to dispense with notice in this setting absent a clear statement of congressional intent to that effect. See, e.g., Edward J. DeBartolo Corp. v. Florida Gulf Coast Building and Construction Trades Council, 485 U.S. 568, 575, 108 S.Ct. 1392, 1397, 99 L.Ed.2d 645. Pp. 135-138.
282 U.S.App.D.C. 194, 893 F.2d 1343 (1990), reversed and remanded.
MARSHALL, J., delivered the opinion of the Court, in which BLACKMUN, STEVENS, SCALIA, and KENNEDY, JJ., joined. SOUTER, J., filed a dissenting opinion, in which WHITE and O'CONNOR, JJ., joined, and in Part I of which REHNQUIST, C.J., joined.
Steven H. Goldblatt, for petitioner.
Stephen J. Marzen, for respondent.
Justice MARSHALL delivered the opinion of the Court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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