IRIZARRY v. UNITED STATES

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708 OCTOBER TERM, 2007
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 communica
tion 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—re
jecting 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 presentence
report or in a party’s prehearing submission, the court must give the
parties reasonable notice that it is contemplating such a departure,”
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 Guide
lines range. At the time that Burns v. United States, 501 U. S. 129,
was decided, prompting Rule 32(h)’s promulgation, the Guidelines 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 pro
tected 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 with advisory Guidelines, neither the Gov
ernment 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 presump
tion of unreasonableness. Gall v. United States, 552 U. S. 38, 51.
Thus, the due process concerns motivating the Court to require notice
in a mandatory Guidelines world no longer provide a basis for extending

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the Burns rule either through an interpretation of Rule 32(h) itself or
through Rule 32(i)(1)(C). 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 sentencing
determination, see Gall, 552 U. S., at 49, 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 confident that
district judges and counsel have the ability—especially in light of Rule
32’s other procedural protections—to make sure that all relevant mat
ters relating to a sentencing decision have been considered before a final
determination is made. Pp. 713–716.
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 concur
ring opinion, post, p. 717. Breyer, J., filed a dissenting opinion, in which
Kennedy, Souter, and Ginsburg, JJ., joined, post, p. 717.
Arthur J. Madden III argued the cause for petitioner.
With him on the briefs were Walter Dellinger, Mark S. Da
vies, and Jonathan D. Hacker.
Matthew D. Roberts argued the cause for the United
States. With him on the brief were former Solicitor Gen
eral Clement, Assistant Attorney General Fisher, Deputy
Solicitor General Dreeben, and Sangita K. Rao.
Peter B. Rutledge, by invitation of the Court, 552 U. S.
1135, argued the cause and filed a brief as amicus curiae in
support of the judgment below. With him on the brief was
Douglas A. Berman.
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 re
port or in a party’s prehearing submission, the court must
give the parties reasonable notice that it is contemplating

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such a departure.” The question presented by this case is
whether that Rule applies to every sentence that is a vari
ance from the recommended Federal Sentencing 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 following admis
sions in the factual resume accompanying his plea: (1) On
November 5, 2003, he sent an e-mail threatening to kill his
ex-wife and her new husband; (2) he had sent “dozens” of
similar e-mails in violation of a restraining order; (3) he in
tended 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 recommended a Guide
lines 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 crim
inal history category might not adequately reflect his “ ‘past
criminal conduct or the likelihood that [petitioner] will com
mit other crimes.’ ” Ibid.
The Government made no objection to the PSR, but ad
vised 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 enhancement based
on his intention to carry out the threats and its rejection

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of an adjustment for acceptance of responsibility. 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 emphasized
at some length her genuine concern that petitioner fully in
tended 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 petitioner “was ob
sessed with the idea of getting rid of ” his ex-wife’s husband.
Id., at 336. Finally, petitioner testified at some length, stat
ing 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
threaten and 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

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range is not appropriate in this case. I find Mr. Irizar
ry’s conduct most disturbing. I am sincerely convinced
that he will continue, as his ex-wife testified, in this con
duct regardless of what this court does and regardless
of what kind of supervision he’s under. And based upon
that, I find that the maximum time that he can be inca
pacitated 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 maximum.
But I think in Mr. Irizarry’s case the statutory maxi
mum is what’s appropriate, and that’s what I’m going to
sentence him.” Id., at 374–375.
The court imposed a sentence of 60 months of imprisonment
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 dis
trict court in this case was a variance, not a guidelines depar
ture.” 458 F. 3d 1208, 1211 (2006) (per curiam). 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 sentencing guidelines range is
advisory . . . . Given Booker, parties cannot claim unfair
surprise or inability to present informed comment.” Id., at
1212.

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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. 1086 (2008). We now affirm.
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 disregarding
“the mechanical dictates of the Guidelines” except in nar
rowly 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 appropriate sentence—now
Rule 32(i)(1)(C)—would be “render[ed] meaningless” unless
the defendant were given notice of any contemplated depar
ture. Id., at 135–136. Justice Souter disagreed with our
conclusion with respect 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 re
ceive a sentence within the presumptively applicable Guide
lines range did not survive our decision in United States v.
Booker, 543 U. S. 220 (2005), which invalidated the manda
tory 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”
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).

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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. 38, 51
(2007); see also Rita v. United States, 551 U. S. 338 (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 man
dated by the Due Process Clause.” Burns, 501 U. S., at 138.
The due process concerns that motivated the Court to re
quire notice in a world of mandatory Guidelines no longer
provide a basis for this Court to extend the rule 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 718 (opinion of Breyer, J.), the rule does not
apply to 18 U. S. C. § 3553 variances by its terms. “Depar
ture” 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 nar
row 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 circumstance of a
kind, or to a degree, not adequately taken into consideration
by the Sentencing Commission in formulating the guidelines
that should result in a sentence different from that de
scribed.” 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 . . . departure either in the presentence re
port 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

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Gall, 552 U. S., at 49, 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 sen
tencing 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 par
ties to comment on “matters relating to an appropriate sen
tence,” and given the scope of the issues that may be consid
ered 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 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 requirement whenever a
judge is contemplating a variance may create unnecessary
delay; a judge who concludes during the sentencing hearing
that a variance is appropriate may be forced to continue the
hearing even where the content of the Rule 32(h) notice
would not affect the parties’ presentation of argument and
evidence. In the case before us today, even if we assume
that the judge had contemplated a variance before the sen
tencing hearing began, the record does not indicate that a
statement announcing 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

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more appropriate response to such a problem is not to extend
the reach of Rule 32(h)’s notice requirement categorically,
but rather for a district judge to consider granting a continu
ance 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 antici
pate most of what might occur at the sentencing hear
ing—based on the trial, the pre-sentence report, the ex
changes 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, nature of the con
duct and so forth should not generally come as a sur
prise to trial lawyers who have prepared for sentenc
ing.” 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 sen
tencing procedures. We have 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 rele
vant matters relating to a sentencing decision have been con
sidered 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). Fi
nally, 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 mitigation testimony,
Rule 32(i)(4)(A)(ii).

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Breyer, J., dissenting
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] Guidelines manda
tory.” Kimbrough v. United States, 552 U. S. 85, 116 (2007)
(dissenting opinion) (referencing United States v. Booker, 543
U. S. 220, 258–265 (2005)); see also Gall v. United States,
552 U. S. 38, 61 (2007) (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 Guidelines,
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 permis
sible is not currently before us.
Rather, we are presented with the narrow question
whether Federal Rule of Criminal Procedure 32(h) requires
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 32(h) nor Burns v.
United States, 501 U. S. 129 (1991), compels a judge to pro
vide notice before imposing a sentence at “variance” with the
post-Booker advisory Guidelines, ante, at 715. Each ad
dresses only “departures” under the mandatory Guidelines
and does not contemplate the drastic changes to federal sen
tencing wrought by the Booker remedy. For this reason,
I join the Court’s opinion.
Justice Breyer, with whom Justice Kennedy, Justice
Souter, and Justice Ginsburg join, dissenting.
Federal Rule of Criminal Procedure 32(h) says:

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“Before the court may depart from the applicable sen
tencing range on a ground not identified for departure
either in the presentence report or in a party’s prehear
ing submission, the court must give the parties reason
able 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 “vari
ance” 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 sen
tence outside the applicable guideline range or of a sentence
that is otherwise different from the guideline sentence.”
United States Sentencing Commission, Guidelines Manual
§ 1B1.1, comment., n. 1(E) (Nov. 2007) (USSG). So-called
variances fall comfortably within this 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 “devia
tion or divergence esp. from a rule” (def. 5a)). And concep
tually speaking, the substantive difference between a “vari
ance” and a “departure” is nonexistent, as this Court’s
opinions themselves make clear. See, e. g., Gall v. United
States, 552 U. S. 38, 46–47 (2007) (using the term “departure”
to describe any non-Guideline sentence); Rita v. United
States, 551 U. S. 338, 350 (2007) (stating that courts “may
depart (either pursuant to the Guidelines 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

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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. 1411 (2000 ed., Supp.
II) (2002 Amendment). In Burns, the Court focused upon
“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.” 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
submission 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 ibid. (“[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 suggests that “[a]ny expectation sub
ject to due process protection at the time we decided Burns”
failed to survive Booker. Ante, at 713. 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 princi
pally based its decision upon Rule 32’s requirement that par
ties be given “ ‘an opportunity to comment upon . . . mat
ters 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 “mat

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ter relating 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
sentence.” 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 requirement 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 reasoned, would be “inconsist
ent 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 require
ment that the district court “allow the parties’ attorneys 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 un
identified grounds for a variance would today “rende[r]
meaningless” the parties’ right to comment on “matters re
lating to [an] appropriate sentence.” Id., at 136 (internal
quotation marks omitted). To deprive the parties of notice
would today subvert Rule 32’s purpose of “promoting fo
cused, adversarial resolution” of sentencing issues. In a
word, it is not fair. Id., at 137.
Seeking to overcome the fact that text, purpose, and prec
edent are not on its side, the majority makes two practical
arguments in its defense. First, it says that notice is unnec

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essary 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 715. Is that so? Courts,
while now free to impose sentences that vary from a
Guidelines-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). Indeed, even
Burns recognized that “the Guidelines place essentially no
limit on the number of potential factors that may warrant a
departure.” 501 U. S., at 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-
Guidelines sentence, that would seem to be an additional ar
gument in favor of, not against, giving the parties notice
of the district court’s intention to impose a non-Guidelines
sentence for some previously unidentified reason. Notice,
after all, would promote “focused, adversarial” litigation at
sentencing. Burns, supra, at 134, 137.
Second, the majority fears that a notice requirement would
unnecessarily “delay” and “complicate” sentencing. Ante, at
715, 716. 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 par
ties’ presentencing submissions. And the Solicitor 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 additional
evidence or brief an unconsidered legal issue. Further, to

553US2 Unit: $U52 [11-15-12 08:41:23] PAGES PGT: OPIN
722 IRIZARRY v. UNITED STATES
Breyer, J., dissenting
the extent that district judges find a notice requirement to
complicate sentencing, those judges could make use of Rule
32(d)(2)(F), which enables them to require that presentence
reports address the sentence that would be appropriate in
light of the § 3553(a) factors (including, presumably, whether
there exist grounds for imposing a non-Guidelines sentence).
If a presentence report includes a section on whether a vari
ance would be appropriate under § 3553(a), that would likely
eliminate the possibility that the district court would wind
up imposing a non-Guidelines sentence for some reason not
previously 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 af
fected 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 procedural fair
ness” 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.