1 18 U.S.C. § 751(a).

1 United States Court of Appeals,

Fifth Circuit.

No. 95-30533.

UNITED STATES of America, Plaintiff-Appellee,

v.

Ronnie KNIGHT, Defendant-Appellant.

Feb. 12, 1996.

Appeal from t he United States District Court For the Western

District of Louisiana.

Before REYNALDO G. GARZA, WIENER and STEWART, Circuit Judges.

PER CURIAM:

This appeal requires us to decide whether the Sentencing

Guidelines or the F ederal Rules of Criminal Procedure, or both,

require a district court to give a criminal defendant notice of its

intention to use a defendant's letter to the court to reject the

recommendations of the Presentence Report (PSR). We conclude that

they do not and affirm the judgment of the district court.

I

FACTS AND PROCEEDINGS

Defendant-Appellant Ronnie Knight escaped from federal prison.

About three weeks later, authorities captured Knight in a house

where he was staying with his girlfriend and some friends. A

search of the house revealed two firearms and various drugs.

Knight pleaded guilty t o one count of escape. 1 The PSR

recommended that Knight be given a two-level decrease for2

acceptance of responsibility and that Knight receive no

enhancements or upward departures. Before sentencing, and

unbeknownst to either his attorney or probation officer, Knight

wrote a letter to the sentencing judge claiming that he had escaped

in order to visit his sick, dying mother. In fact, at no time

during the escape had Knight gone to visit his mother. On the

morning of the sentencing hearing, the district court issued a

memorandum ruling announcing its intention to (1) den y the PSR's

recommen dation for a two-level decrease for acceptance of

responsibility and, instead, (2) impose a two-level enhancement for

obstruction of justice. The four-level change from the PSR's

recommendation meant an addition of 12 months to Knight's prison

term.

At the sentencing hearing, defense counsel ex plained to the

court that he had been unaware of Knight's letter until that

morning, but that he had spoken with Knight about the matter.

Counsel explained that Knight had indeed escaped for the purpose of

visiting his mother, but that Knight had abandoned th e idea,

fearing that a visit might implic ate her in the escape. The

district court did not credit this explanation. Knight's attorney

also stated several times to the court that he had been surprised

by the matter of th e letter and thus had completed no legal

research. The district court sentenced Knight to 30 months in

prison, the maximum sentence allowed for Knight's offense level and

criminal history. Knight's attorney's objection to the denial of

a decrease for acceptance of responsibility and to the increase for2 501 U.S. 129, 111 S.Ct. 2182, 115 L.Ed.2d 123 (1991).

3 501 U.S. at 138, 111 S.Ct. at 2187.

3 obstruction of justice was to no avail, and this appeal ensued.

II

DISCUSSION

The sole issue before us on this appeal is whether the

Sentencing Guidelines and Fed.R.Crim.P. 32(a), or either of them,

require a district court to give a criminal defendant notice of its

intention to use his letter to the court as the basis for rejecting

the recommendations of the PSR. Although the government contends

that Knight failed to object on these grounds in the district

court, we hold that defense counsel's objection, when considered in

light of the entirety of the sentencing transcript, fairly included

the g round of lack of notice. We therefore review this issue of

law de novo.

Knight argues that the district court's fail ure to provide

him notice of its intention to reject the PSR's recommendation

regarding acceptance of responsibility and to enhance his sentence

for obstruction of justice violated both Rule 32(a)(1) and U.S.S.G.

§ 6A1.3. Knight relies on B urns v. United States, 2 which held that

a district court must provide the defendant notice of its intention

to "depart upward on a ground not identified as a ground for upward

departure either in the presentence report or in a prehearing

submiss ion by the Government." 3 Knight argues that little

functional difference exists between an upward departure and an

enhancement, and that Burns therefore should require notice in this4 Knight does n ot invoke the Due Process Clause and thus we

expressly decline to consider any c onstitutional issue in this

appeal.

5 Unite d States v. Adipietro, 983 F.2d 1468, 1473 (8th

Cir.1993); U

nited States v. Canada, 960 F.2d 263, 265-68 (1st

Cir.1992).

6 United States v. Jackson, 32 F.3d 1101 (7th Cir.1994); s ee also United States v. Zapatka, 44 F.3d 112 (2d Cir.1994) (holding

that, at least where the PSR cites an inapposite Guidelines

provision, a defendant must be given notice of the district court's

intention to enhance on the basis of a different section that

actually does apply, but stressing the unique character of the

case).

7 Compare United States v. Patrick, 988 F.2d 641, 644-46 (6th

Cir.1993) (relying on the fact that the defendant bears the burden

of proving entitlement to a reduction to hold that a district court

need not give notice of its intent to deny a reduction recommended

in the PSR), cert. deni ed, --- U.S. ----, 114 S.Ct. 136, 126

L.Ed.2d 99 (1993) and United States v. McLean, 951 F.2d 1300, 1202-

03 (D.C.Cir.1991), cert. denied, 503 U.S. 1010, 112 S.Ct. 1775, 118

L.Ed.2d 433 (1992) (same) with United States v. Brady, 928 F.2d

844, 848 (9th Cir.1991) ("The trial court's denial of the two-level

reduction in offense leve l, without notice to [the defendant] of

its intent to deny the reduction, deprived [the defendant] of an

adequate opportunity to present information to the court on his

acceptance of responsibility") (alterations added).

4 case as well. 4

The First and Eighth Circuits have squarely held that district

courts need not provide such notice. 5 A circuit split was narrowly

averted on this issue, when a Seventh Circuit panel split one to

one on the enhancement issue, with Judge Posner casting his vote on

other grounds. 6 A clear circuit split does exist, however, on the

question whether a defendant is entitled to notice of a district

court's intention to deny a reduction recommended in the PSR. 7

This case presents both the denial of a reduction issue and

the granting of an enhancement issue. The opinions in the cases

cited above fully articulate the various arguments on these8 Burns, 501 U.S. at 136-37, 111 S.Ct. at 2186.

5 questions. As these opinions make clear, the decisions depend in

part on the confidence one has in the abilities of the average

defense counsel, as well as whether one believes that the

enhancement and reduction factors specified in the Guidelines are

sufficiently uncomplicated to allow counsel to prepare for

sentencing without specific notice a district court's intention to

disregard the recommendations of the PSR. At least under the facts

and circumstances of this case, we find more convincing the views

of those circuits which do not require notice.

Although Knight is correct that little functional difference

exists among an upward departure, an enhancement, and a denial of

a reduction, the differences in form and in name are designed with

notice considerations in mind. The Guidelines themselves specify

grounds for enhancement and deduction. In contrast, "[b]ecause the

Guidelines place essentially no limit on the numb er 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." 8

We hold that, at least if the defendant has actual knowledge

of the facts on which the district court bases an enhancement or a

denial of a reduction, the Sentencing Guidelines themselves provide

notice of the grounds relevant to the proceeding sufficient to

satisfy the requirements of Rule 32 and U.S.S .G. § 6A1.3. We do

not believe that the Guidelines themselves are too complicated, or

that the average de fense counsel is insufficiently skilled, to

render adequate preparation unduly difficult without specific6

notice of all grounds for an enhancement or for a denial of a

reduction. As the government argues in its brief to this court,

u nder certain circumstances providing notice will be impossible,

such as when a defendant obstructs justice by lying at a sentencing

hearing in an attempt to induce leniency. We do believe that

requiring prehearing notice of intent to depart from the PSR in any

way would undul y elevate the PSR to a virtually conclusive

document. The PSR is often conclusive, but final decision-making

power must, nonetheless, reside with the district court, and the

court must have suffi cient flexibility to deal with factors not

covered in the PSR or arising aft er its writing. The Guidelines

themselves put defense counsel on notice that all possible grounds

for enhancement or reduction are on the table at a sentencing

hearing. That notice satisfies Rule 32(a) and U.S.S.G. § 6A1.3.

We have little doubt that Knight knew of the letter he

authored. Had he told his attorney of its existence, its

significance would have been readily apparent. Knight chose not to

do so, and he must bear the consequences of his own choice.

For the forgoing reasons, the judgment of the district court

is AFFIRMED.