# Burns v. United States (501 U.S. 129)/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Souter
The question in this case is whether a district court may depart upward from the sentencing range established by the Sentencing Guidelines without first notifying the parties that it intends to depart. We hold that it may not.
* Petitioner William Burns was employed by the United States Agency for International Development (AID) from 1967 until 1988. Between 1982 and 1988, petitioner used his position as a supervisor in the agency's Financial Management Section to authorize payment of AID funds into a bank account controlled by him in the name of a fictitious person. During this period, 53 fraudulent payments totaling over $1.2 million were paid into the account.
Following the Government's detection of this scheme, petitioner agreed to plead guilty to a three-count information charging him with theft of Government funds, 18 U.S.C. § 641, making false claims against the Government, 18 U.S.C. § 287, and attempted tax evasion, 26 U.S.C. § 7201. The plea agreement stated the parties' expectation that petitioner would be sentenced within the Guidelines range corresponding to an offense level of 19 and a criminal history category of I.
The probation officer confirmed this expectation in his presentence report and found the applicable sentencing range to be 30 to 37 months. The report also concluded: "There are no factors that would warrant departure from the guideline sentence." App. 21. Both petitioner and the Government reviewed the presentence report, and neither party filed any objections to it.
Nonetheless, at the conclusion of the sentencing hearing, the District Court announced that it was departing upward from the Guidelines sentencing range. The District Court set forth three reasons for the departure: (1) the extensive duration of petitioner's criminal conduct; (2) the disruption to governmental functions caused by petitioner's criminal conduct; and (3) petitioner's use of his tax evasion offense to conceal his theft and false claims offenses. Based upon these considerations, the District Court sentenced petitioner to 60 months' imprisonment.
On appeal, petitioner argued that Rule 32 of the Federal Rules of Criminal Procedure obliged the District Court to furnish advance notice of its intent to depart from the Guidelines. The Court of Appeals for the District of Columbia Circuit rejected petitioner's contention and affirmed his sentence. The court observed that, although subdivision (a)(1) of Rule 32 requires the district court to afford the parties "an opportunity to comment upon . . . matters relating to the appropriate sentence" at the sentencing hearing, the Rule contains no express language requiring a district court to notify the parties of its intent to make sua sponte departures from the Guidelines. The court determined that it would be inappropriate to impose such a requirement on district courts in the absence of such express statutory language. See 282 U.S.App.D.C. 194, 199, 893 F.2d 1343, 1348 (1990).
By contrast, several other Circuits have concluded that Rule 32 does require a district court to provide notice of its intent sua sponte to depart upward from an applicable Guidelines sentencing range. We granted certiorari to resolve this conflict. 497 U.S. ----, 110 S.Ct. 3270, 111 L.Ed.2d 780 (1990). We now reverse.
The Sentencing Reform Act of 1984 revolutionized the manner in which district courts sentence persons convicted of federal crimes. See generally Mistretta v. United States, 488 U.S. 361, 363-367, 109 S.Ct. 647, 649-652, 102 L.Ed.2d 714 (1989). Before the Act, Congress was generally content to define broad sentencing ranges, leaving the imposition of sentences within those ranges to the discretion of individual judges, to be exercised on a case-by-case basis. Now, under the "guidelines" system initiated by the Act, district court judges determine sentences based on the various offense-related and offender-related factors identified by the Guidelines of the United States Sentencing Commission. See 18 U.S.C. §§ 3553(a)(4), (b). The purpose of this reform was to eliminate the "unwarranted disparit[ies] and . . . uncertainty" associated with indeterminate sentencing. See, e.g., S.Rep. No. 98-225, p. 49 (1983). The only circumstance in which the district court can disregard the mechanical dictates of the Guidelines is when it finds "that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission. . . ." 18 U.S.C. § 3553(b).
Procedural reforms, too, were necessary to achieve Congress' goal of assuring "certainty and fairness" in sentencing. See 28 U.S.C. § 991(b)(1)(B). As the Commission has explained:
"In pre-guidelines practice, factors relevant to sentencing were often determined in an informal fashion. The informality was to some extent explained by the fact that particular offense and offender characteristics rarely had a highly specific or required sentencing consequence. This situation will no longer exist under sentencing guidelines. The court's resolution of disputed sentencing factors will usually have a measurable effect on the applicable punishment. More formality is therefore unavoidable if the sentencing process is to be accurate and fair. . . . When a reasonable dispute exists about any factor important to the sentencing determination, the court must ensure that the parties have an adequate opportunity to present relevant information." U.S. Sentencing Comm'n, Guidelines Manual § 6A1.3, official commentary (1990) (emphasis added).
As amended by the Sentencing Reform Act, Federal Rule of Criminal Procedure 32 provides for focused, adversarial development of the factual and legal issues relevant to determining the appropriate Guidelines sentence. Rule 32 frames these issues by directing the probation officer to prepare a presentence report addressing all matters germane to the defendant's sentence. See Fed.Rule Crim.Proc. 32(c)(2). At least 10 days before the sentencing, the report must be disclosed to the parties, see Rules 32(c)(3)(A), (C), whom the Guidelines contemplate will then be afforded an opportunity to file responses or objections with the district court, see Guidelines § 6A1.2, and official commentary. Finally, Rule 32(a)(1) provides that "[a]t the sentencing hearing, the court [must] afford the counsel for the defendant and the attorney for the Government an opportunity to comment upon the probation officer's determination and on other matters relating to the appropriate sentence." This case involves one aspect of the procedures surrounding Guidelines sentencing: whether the defendant is entitled to notice before the district court departs sua sponte from the Guidelines sentencing range. In the ordinary case, the presentence report or the Government's own recommendation will notify the defendant that an upward departure will be at issue and of the facts that allegedly support such a departure. Here we deal with the extraordinary case in which the district court, on its own initiative and contrary to the expectations of both the defendant and the Government, decides that the factual and legal predicates for a departure are satisfied. The question before us is whether Congress, in enacting the Sentencing Reform Act, intended that the district court be free to make such a determination without notifying the parties. We believe that the answer to this question is clearly no.
As we have set forth, Rule 32 contemplates full adversary testing of the issues relevant to a Guidelines sentence and mandates that the parties be given "an opportunity to comment upon the probation officer's determination and on other matters relating to the appropriate sentence." Fed.Rule Crim.Proc. 32(a)(1). Obviously, whether a sua sponte departure from the Guidelines would be legally and factually warranted is a "matte[r] relating to the appropriate sentence." In our view, it makes no sense to impute to Congress an intent that a defendant have the right to comment on the appropriateness of a sua sponte departure but not the right to be notified that the court is contemplating such a ruling.
In arguing that Rule 32 does not contemplate notice in such a situation, the Government derives decisive meaning from congressional silence. Rule 32(c)(3)(A), the Government observes, expressly obliges the district court to give the parties' 10 days' notice of the contents of the presentence report. Because Rule 32 does not contain a like provision expressly obliging the district court to announce that it is contemplating to depart sua sponte, the Government concludes that Congress must have intended to deny the parties any right to notice in this setting.
We find the Government's analysis unconvincing. As one court has aptly put it, "[n]ot every silence is pregnant." State of Illinois Dept. of Public Aid v. Schweiker, 707 F.2d 273, 277 (CA7 1983). In some cases, Congress intends silence to rule out a particular statutory application, while in others Congress' silence signifies merely an expectation that nothing more need be said in order to effectuate the relevant legislative objective. An inference drawn from congressional silence certainly cannot be credited when it is contrary to all other textual and contextual evidence of congressional intent.
Here the textual and contextual evidence of legislative intent indicates that Congress did not intend district courts to depart from the Guidelines sua sponte without first affording notice to the parties. Such a reading is contrary to the text of Rule 32(a)(1) because it renders meaningless the parties' express right "to comment upon . . . matters relating to the appropriate sentence." "Th[e] right to be heard has little reality or worth unless one is informed" that a decision is contemplated. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950). This is especially true when the decision in question is a sua sponte departure under the Guidelines. Because the Guidelines place essentially no limit on the number of potential factors that may warrant a departure, see, e.g., Guidelines Ch. 1, Part A, Introduction 4(b), no one is in a position to guess when or on what grounds a district court might depart, much less to "comment" on such a possibility in a coherent way. The Government's construction of congressional "silence" would thus render what Congress has expressly said absurd. Cf. Green v. Bock Laundry Machine Co., 490 U.S. 504, 527, 109 S.Ct. 1981, 1994, 104 L.Ed.2d 557 (1989) (SCALIA, J., concurring in judgment) (when "confronted . . . with a statute which, if interpreted literally, produces an absurd, and perhaps unconstitutional result[,] [o]ur task is to give some alternative meaning [to the statute] . . . that avoids this consequence").
The inference that the Government asks us to draw from silence also is inconsistent with Rule 32's purpose of promoting focused, adversarial resolution of the legal and factual issues relevant to fixing Guidelines sentences. At best, under the Government's rendering of Rule 32, 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.
Lastly, the meaning that the Government attaches to Congress' silence in Rule 32 is completely opposite to the meaning that this Court has attached to silence in a variety of analogous settings. Notwithstanding the absence of express statutory language, this Court has readily construed statutes that authorize deprivations of liberty or property to require that the Government give affected individuals both notice and a meaningful opportunity to be heard. See American Power & Light Co. v. SEC, 329 U.S. 90, 107-108, 67 S.Ct. 133, 143-144, 91 L.Ed. 103 (1946) (statute permitting Securities and Exchange Commission to order corporate dissolution); The Japanese Immigrant Case, 189 U.S. 86, 99-101, 23 S.Ct. 611, 614-615, 47 L.Ed. 721 (1903) (statute permitting exclusion of aliens seeking to enter United States). The Court has likewise inferred other statutory protections essential to assuring procedural fairness. See Kent v. United States, 383 U.S. 541, 557, 86 S.Ct. 1045, 1055, 16 L.Ed.2d 84 (1966) (right to full, adversary-style representation in juvenile transfer proceedings); Greene v. McElroy, 360 U.S. 474, 495-508, 79 S.Ct. 1400, 1413-1420, 3 L.Ed.2d 1377 (1959) (right to confront adverse witnesses and evidence in security-clearance revocation proceedings); Wong Yang Sung v. McGrath, 339 U.S. 33, 48-51, 70 S.Ct. 445, 453-455, 94 L.Ed. 616 (1950) (right to formal hearing in deportation proceedings).
In this case, were we to read Rule 32 to dispense with notice, we would then have to confront the serious question whether notice in this setting is mandated by the Due Process Clause. Because Rule 32 does not clearly state that a district court sua sponte may depart upward from an applicable Guidelines sentencing range without providing notice to the defendant we decline to impute such an intention to Congress. See, e.g., Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council, 485 U.S. 568, 575, 108 S.Ct. 1392, 1397, 99 L.Ed.2d 645 (1988) ("[W]here an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress").
We hold 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 submission by the Government, Rule 32 requires that the district court give the parties reasonable notice that it is contemplating such a ruling. This notice must specifically identify the ground on which the district court is contemplating an upward departure.
Petitioner did not receive the notice to which he was entitled under Rule 32. Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
So ordered.
Justice SOUTER, with whom Justice WHITE and Justice O'CONNOR join, and with whom THE CHIEF JUSTICE joins as to Part I, dissenting.

## Notes

* ↑ See, e.g., United States v. Palta, 880 F.2d 636, 640 (CA2 1989); United States v. Nuno-Para, 877 F.2d 1409, 1415 (CA9 1989); United States v. Otero, 868 F.2d 1412, 1415 (CA5 1989).
* ↑ Pursuant to Rule 32(c)(2), the presentence report is to contain (a) information about the history and characteristics of the defendant, including his prior criminal record; (b) the classification of the offense and the defendant under the Sentencing Guidelines, possible sentencing ranges, and any factors that might warrant departure from the Guidelines; (c) any pertinent policy statements issued by the Sentencing Commission; (d) the impact of the defendant's offense upon any victims; (e) information relating to possible sentences not requiring incarceration, unless the court orders otherwise; and (f) any other information requested by the court.
* ↑ District courts have generally implemented this directive through local rules that allow the parties to file objections to the presentence report in advance of the sentencing hearing and that require the probation officer to respond to those objections. See, e.g., U.S.Dist.Ct. for the MD Ala.Rules 33(a)-(c); U.S.Dist.Ct. for the D DC Rules 311(a)-(c); U.S.Dist.Ct. for the ND Fla.Gen.Rules 23(b)-(d); U.S.Dist.Ct. for the ND Ill.Crim.Rules 2.06(g)-(i); U.S.Dist.Ct. for the ED-MD-WD La.Rules 16M(a)-(c); U.S.Dist.Ct. for the D.Minn.Rules 83.10(c)-(d); U.S.Dist.Ct. for the EDNC Rules 50.03-50.05; U.S.Dist.Ct. for the ND Ohio Crim.Rules 10.05(2)(b)-(d); U.S.Dist.Ct. for the WD Okla.Rules 42(E)(1)-(3); U.S.Dist.Ct. for the ED Tenn.Rules 27.3-27.5; U.S.Dist.Ct. for the ND Tex.Rules 10.9(b)-(e); U.S.Dist.Ct. for the WD Va.Rules 14(1)-(3); U.S.Dist.Ct. for the D.Wyo.Rules 219(c)-(f).
* ↑ It is equally appropriate to frame the issue as whether the parties are entitled to notice before the district court departs upward or downward from the Guidelines range. Under Rule 32, it is clear that the defendant and the Government enjoy equal procedural entitlements.
* ↑ If the Government makes the recommendation in writing, Federal Rule of Criminal Procedure 49(a) requires that it be served upon the defendant.
* ↑ Because the question of the timing of the reasonable notice required by Rule 32 is not before us, we express no opinion on that issue. Rather, we leave it to the lower courts, which, of course, remain free to adopt appropriate procedures by local rule. See Guidelines § 6A1.2, and official commentary ("Courts should adopt procedures to provide for . . . the narrowing and resolution, where feasible, of issues in dispute in advance of the sentencing hearing"). See also n. 3, supra (listing local rules established to govern resolution of objections to findings in presentence report).
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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