1 (Slip Opinion) OCTOBER TERM, 2007

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 an d 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 Ru le of Criminal Procedure 32(h), which states that “[b]efore the co urt may depart from the applicable sentencing range on a ground not iden tified . . . 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 Guide lines’ “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 comme nt 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 pres umptively applicable Guidelines range did not, however, survive United States v. Booker , 543 U. S. 220, which invalidated the Guidelines’ mandatory features. Faced2 IRIZARRY v. UNITED STATES

Syllabus

with advisory Guidelines, neither the Government nor the defendant may place the same degree of relianc e on the type of “expectancy” that gave rise to a special need for notice in Burns . Indeed, a sen

tence outside the Guidelines carri es 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 interpreta tion 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 benc hmark,” 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 sent encing decision have been consid

ered before a final determination is made. Pp. 5–8.
458 F. 3d 1208, affirmed.

S TEVENS
, J., delivered the opinion of the Court, in which R OBERTS
, C. J., and S CALIA , T HOMAS , and A LITO
, JJ., joined. T HOMAS
, J., filed a concurring opinion. B REYER
, J., filed a dissenting opinion, in which
K ENNEDY , S OUTER , and G INSBURG
, JJ., joined._________________

_________________ 1 Cite as: 553 U. S. ____ (2008)

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]

J USTICE S TEVENS 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 depa rture, 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, butadvised the court that it intended to call petitioner’s exwife 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 genui ne 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 that3 Cite as: 553 U. S. ____ (2008)

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-guidel ines 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).5 Cite as: 553 U. S. ____ (2008)

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.
J USTICE S OUTER 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 readRule 32 to dispense with notice [of a contemplated nonGuidelines 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 rule6 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 B REYER
, 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 prehearing 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 their7 Cite as: 553 U. S. ____ (2008)

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) no tice 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 hav e confidence in the ability of district judges and counsel—especially in light of Rule 32’s other procedural protections 2 —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 an y unresolved objectio ns, 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)._________________

_________________ 1 Cite as: 553 U. S. ____ (2008)

T HOMAS
, 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]

J USTICE T HOMAS , 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) (T HOMAS , 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 th e Court that neither Rule2 IRIZARRY v. UNITED STATES

T HOMAS
, 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._________________

_________________ 1 Cite as: 553 U. S. ____ (2008)

B REYER
, 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]

J USTICE B REYER , with whom J USTICE K ENNEDY
, J USTICE S OUTER , and J USTICE G INSBURG 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 applicabl e 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 this2 IRIZARRY v. UNITED STATES

B REYER
, 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. Sundowner 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

-3 Cite as: 553 U. S. ____ (2008)

B REYER
, J., dissenting

mission by the Government . . . the district court [must] give the parties reasonable noti ce 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 thenRule 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, ad versarial 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 opport unity 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

B REYER
, 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 , giving5 Cite as: 553 U. S. ____ (2008)

B REYER
, J., dissenting

the parties notice of the distri ct 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 wi th 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 distri ct 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 directly6 IRIZARRY v. UNITED STATES

B REYER
, 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.