Burns v. United States (501 U.S. 129)/Dissent Souter
Justice SOUTER, with whom Justice WHITE and Justice O'CONNOR join, and with whom THE CHIEF JUSTICE joins as to Part I, dissenting.
The Court today imposes a procedural requirement neither contemplated by Congress nor warranted by the language of any statute or rule. The Court's inference of a notice requirement from congressional silence rests on a failure to appreciate the extraordinary detail with which the Sentencing Reform Act (in amending Federal Rule of Criminal Procedure 32 and in its other provisions) expressly provides the procedures to be followed in imposing sentence in a federal criminal case. The absence from this carefully calibrated scheme of any provision for notice of the sort required by the Court makes it clear that, in the words the Court quotes, ante, at 6, the congressional silence was pregnant, and that Congress intended to require no such notice. The Court's interpretation of Rule 32 accomplishes " 'not a construction of a [rule], but, in effect, an enlargement of it by the court.' " West Virginia University Hospitals, Inc. v. Casey, 499 U.S. ----, ----, 111 S.Ct. 1138, 1148, 113 L.Ed.2d 68 (1991), quoting Iselin v. United States, 270 U.S. 245, 251, 46 S.Ct. 248, 250, 70 L.Ed. 566 (1926) (Brandeis, J.). Because the Court's creation cannot be justified as a reasonable construction of the Rule, I respectfully dissent.
* The express procedural requirements of the Sentencing Reform Act are numerous. Unless the court makes findings that would justify dispensing with a presentence investigation, the probation officer must make a presentence report, Fed.R.Crim.Proc. 32(c)(1), that includes, inter alia, "information about the history and characteristics of the defendant"; "the classification of the offense and of the defendant under the categories established by the Sentencing Commission . . . that the probation officer believes to be applicable to the defendant's case"; "the sentencing range suggested for such a category of offense committed by such a category of defendant as set forth in the guidelines issued by the Sentencing Commission"; and "an explanation by the probation officer of any factors that may indicate that a sentence of a different kind or of a different length from one within the applicable guideline would be more appropriate under all the circumstances." Fed.Rules Crim.Proc. 32(c)(2)(A) and (B).
The same Rule provides several guarantees of a defendant's right to address the court. At the sentencing hearing, the district court "shall 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." Rule 32(a)(1). Before imposing sentence the court must "determine that the defendant and his counsel have had the opportunity to read and discuss" any presentence report, and must afford the defendant and his counsel an opportunity to speak to the court and present mitigating information. Rule 32(a)(1)(A). Finally, the defendant and his counsel must be given the "opportunity to comment on the report and, in the discretion of the court, to introduce testimony or other information relating to any alleged factual inaccuracy contained in it." Rule 32(c)(3)(A).
The report itself, "not including any final recommendation as to sentence," must in most respects be disclosed to the defendant, his counsel, and the attorney for the Government at least 10 days before sentencing, unless the defendant waives his right to that notice. Rules 32(c)(3)(A) and (C); 18 U.S.C. § 3552(d). Even when there is no full report, "[p]rior to the sentencing hearing, the court shall provide the counsel for the defendant and the attorney for the Government with notice of the probation officer's determination, pursuant to the provisions of subdivision (c)(2)(B), of the sentencing classifications and sentencing guideline range believed to be applicable to the case." Rule 32(a)(1).
The district court must sentence within the range set by the Guidelines, unless it finds "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 described." 18 U.S.C. § 3553(b). A judge who departs from the Guidelines must "state in open court . . . the specific reason for the imposition of a sentence different from that described," § 3553(c)(2), and a sentence outside the applicable range may be appealed. §§ 3742(a(3), (b)(3).
For all this attentive concern with procedure, neither Rule 32 nor any other provision of the Sentencing Reform Act expressly requires advance notice of a district court's intention to depart sua sponte from the Guidelines range. The Court contends that such a notice requirement is implicit in the provision of Rule 32(a)(1)  mandating that the parties be given "an opportunity to comment upon the probation officer's determination and on other matters relating to the appropriate sentence." In the Court's view, the right to comment on a matter relating to sentencing, such as the possibility of upward departure, can be exercised effectively only when that "matter" is identified explicitly; accordingly, the argument runs, in providing an opportunity to comment Congress must also have intended to require that notice be given of any matter upon which the parties might desire to comment. See ante, at 136-137.
The difficulty with this reasoning is that the terms of the Act reflect a decided congressional disinclination to rely on presuppositions and silent intentions in place of explicit notice requirements. The Act expressly requires that before sentencing the court must give notice to the defense of the probation officer's determination of the sentencing classifications and guideline range applicable to the case. The Act also expressly entitles the defense to a copy of the presentence report not less than 10 days before the hearing (subject to qualifications not relevant here), and it expressly directs the court to ensure that the defendant and defendant's counsel have had the opportunity to read and discuss the report before sentence is imposed.
What is remarkable about these provisions is that all of them (save for the guarantee of 10-day notice) would be superfluous on the Court's reasoning. It is fair to say, for example, that the right to comment not merely on the appropriate classifications and guideline range, but on the probation officer's determinations of what they are, implies a right to notice of those determinations. And yet Congress did not leave the notice requirement to the force of implication but expressly provided for it, both in cases with a presentence report and in cases without one. It would be only slightly less compelling to argue that a right to comment on other matters affecting sentence implies a right to read, discuss, and address the court with respect to the probation officer's report. And yet, again, the drafters of Rule 32 provided for this result, not by relying on implication but by specific mandates to disclose.
Given this congressional reliance on explicit provisions for disclosure even when notice requirements might reasonably have been inferred from rights to comment, there is great significance in the congressional silence about notice when a sentencing judge intends to depart from a guideline range. The only fair inference from this differential treatment is that when Congress meant to provide notice and disclosure, it was careful to be explicit, as against which its silence on the predeparture notice at issue here bespeaks no intent that notice be given. See, e.g., General Motors Corp. v. United States, 496 U.S. ----, ----, 110 S.Ct. 2528, ----, 110 L.Ed.2d 480 (1990).
The Court seeks to justify its rewriting of Rule 32 by asserting that interpreting the Rule as written would be "absurd," because such an interpretation would "rende[r] meaningless" the right to comment on "other matters relating to the appropriate sentence" conferred by the Rule. Ante, at 136-137. Even if we were authorized to embellish Congress' handiwork in the interest of enduing it with additional meaning, however, the Court's argument would fail on its own terms, for the Court's specific notice requirement is not necessary to save the right to comment from meaninglessness.
First, the phrase "other matters relating to the appropriate sentence" includes a wide variety of matters beyond the district court's possible inclination to depart sua sponte, such as the existence and significance of facts indicating the sentence that the court should choose within the applicable guideline range. Lack of specific notice as to just one "other matter" (the court's option to depart upward) does not render the entire phrase meaningless.
Second, even with regard to the "matter" of possible upward departure, the absence of specific notice hardly renders the opportunity to comment meaningless. The Court's contrary conclusion rests on its erroneous treatment of the absence of specific notice of the factors on which the court may rely as equivalent to a complete absence of notice that the court may depart. Because the Sentencing Reform Act provides that a court may depart from the applicable guideline range if it finds "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 described," 18 U.S.C. § 3553(b), the statute itself puts the parties on notice that departure is always a possibility, and the parties can use their opportunity to comment to address that possibility. Indeed, the record in this case demonstrates that, even without specific notice, counsel may choose to gear part of the argument to the possibility of departure. At the sentencing hearing, despite the absence of any indication that the judge was contemplating departure, petitioner's counsel closed his remarks to the court by asking "that the period of incarceration be limited enough that he has a family to return to, that he has a future that he can work towards rebuilding,and we think the guidelines are the appropriate range, Your Honor. We ask Your Honor to consider a sentence within the guidelines." App. 45 (emphasis added).
Although specific notice of the sort required by the Court might be useful to the parties in helping them focus on specific potential grounds for departure, its absence hardly makes the opportunity to comment on the possibility of departure so meaningless as to justify judicial legislation. Although "we construe statutes, where possible, so as to avoid rendering superfluous any parts thereof," Astoria Federal Savings & Loan Assn. v. Solimino, 501 U.S. ----, ----, 111 S.Ct. 2166, ----, --- L.Ed.2d ---- (1991), it is not our practice to supplement their provisions simply because we think that some statutory provision might usefully do further duty than Congress has assigned to it. 
The Court also seeks to rely on the rule that statutes should be construed so as to avoid raising serious constitutional problems. Ante, at 138. This canon of construction, however, only applies when the constitutional difficulty can be avoided by a " 'reasonable construction,' " 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) (emphasis added), of the statute. The problem with the Court's notice requirement is that in no way does it result from a "construction" of anything in Rule 32. In light of the emphatic congressional silence about prior notice of sua sponte departures, what the Court does to Rule 32 comes closer to reconstruction than construction.
In any event, the canon applies only when a contrary construction would "raise serious constitutional problems." Ibid. Because, as I will now proceed to discuss, Rule 32 as written raises no such problems, there is no warrant for the Court's conclusion. 
I begin with the proposition that "the sentencing process, as well as the trial itself, must satisfy the requirements of the Due Process Clause." Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 1204, 51 L.Ed.2d 393 (1977) (plurality opinion). At the threshold, of course, there must be an interest subject to due process protection, such as the expectancy that we found to have been created by the Nebraska statute at issue in Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). The act there in question directed that the parole board, when considering the possible release of an eligible prisoner, " 'shall order his release unless it is of the opinion that his release should be deferred because' " one of four statutory criteria was met. Id., at 11, 99 S.Ct., at 2106; see also Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532, 538-541, 105 S.Ct. 1487, 1491-1492, 84 L.Ed.2d 494 (1985); Wolff v. McDonnell, 418 U.S. 539, 558, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974). The Sentencing Reform Act of 1984 creates a similar presumption by providing that "[t]he court structure. Id., at 599-600, 99 S.Ct., at 2502-2503. We called it "a general approach for testing challenged state procedures under a due process claim," id., at 599, 99 S.Ct., at 2502, even as we recognized that "[w]hile facts are plainly necessary for a proper resolution of [the relevant medical] questions, they are only a first step in the process." Id., at 609, 99 S.Ct., at 2507. In Greenholtz, we relied on Mathews while realizing that the Parole Board's decision was "necessarily subjective in part and predictive in part," that it entailed the exercise of "very broad discretion," 442 U.S., at 13, 99 S.Ct., at 2107, and that none of the statutory bases for denying parole was a mere issue of historical fact. See id., at 11, 99 S.Ct., at 2106. In Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977), holding that due process did not require notice and a hearing before the infliction of corporal punishment, we applied Mathews even though the relevant "risk of error" was not merely that facts might be mistaken, but that apart from any factual mistake corporal punishment might be inflicted "unnecessarily or excessively." 430 U.S., at 678, 97 S.Ct., at 1416. The Mathews analysis has thus been used as a general approach for determining the procedures required by due process whenever erroneous governmental action would infringe an individual's protected interest, and I think that Mathews provides the right framework for the analysis here as well.
As for the first Mathews factor, a convicted defendant plainly has a lively concern with the consequences of an erroneous upward departure. In the present case, for example, petitioner's sentence of 60 months' imprisonment was double the low end of the recommended guideline range of 30 to 37 months. A defendant's interest in receiving a sentence not unlawfully higher than the upper limit of the guideline range is thus clearly substantial.
Neither, however, is the Government's interest at issue here an insignificant one. Although the Court does not decide when notice must be given, it seems likely that the Court's notice requirement will force a district court to postpone the imposition of sentence whenever the court decides at or shortly before the sentencing hearing that upward departure should be considered. To avoid the possibility of such a postponement, a sentencing judge will need to schedule time well in advance of the sentencing hearing to identify and consider possible grounds for departure. Since the time spent on this advance review will not simply be recovered by subtracting it from the length of the subsequent sentencing hearing, the result will almost certainly be more time spent on a process already lengthened considerably by the new sentencing scheme. See Report of the Federal Courts Study Committee 137 (1990) (90 percent of judges in survey report that Guidelines have made sentencing more time-consuming; 30 percent report an increase of at least 50 percent in time spent on sentencing). Thus, the Government has an important interest in avoiding the additional drain on judicial resources that the Court's notice requirement will impose on already-overburdened district judges. Cf., e.g., Advisory Committee's Notes on Fed.Rule Crim.Proc. 32, 18 U.S.C.App., p. 798 (declining to require sentencing judge to notify defendant of possible uses of presentence report, because "[t]he Committee believes that this additional burden should not be placed upon the trial judge"). 
With each party having substantial and contrary interests, great significance attaches to the second element in the Mathews analysis. I think it clear that both the risk of error under the procedures already required, and the probable value of a further notice requirement are sufficiently low that the current sentencing scheme passes constitutional muster without the notice requirement imposed by the Court today.
The first of the possible sources of error that could infect a sentencing decision are the conclusions of fact thought by the sentencing judge to justify any upward departure. These factual propositions are, however, generally presented in the presentence report, and are subject to challenge and evidentiary resolution under Rule 32(c)(3)(A).  The practical adequacy of this chance to challenge any erroneous fact statements is not limited to any significant degree by lack of notice that the judge is considering departure from the Guidelines, since a defendant clearly is on notice that an unfavorably erroneous fact statement can do him serious harm by influencing the judge to sentence on the high end of the guideline range, even when the disquieting fact might not drive the judge to the point of considering departure from the range itself. No procedure beyond that of the existing law is therefore necessary to provide a defendant with a reason as well as an effective opportunity to minimize the risk of an upward departure resting on a mistake of fact relevant to sentencing.
A second source of possible sentencing error inheres in the interpretation and application of congressional sentencing authorization. Of course, under any codified sentencing scheme there will always be some risk, albeit normally a low one, that a judge may stray beyond the outer limit of the sentence provided for the offense in question, in which event rehearing or appeal will allow for correction. There is, however, a potential for legal error peculiar to proceedings under the Sentencing Reform Act of 1984, in the provision that an aggravating or mitigating fact may justify departure from the otherwise applicable guideline range if that factual circumstance is not adequately reflected in the range chosen by the Commission. 18 U.S.C. § 3553(b). Because such an issue of adequate reflection goes essentially to the Commission's intentions, it has uniformly, and I believe correctly, been treated as an issue of law subject to customary appellate review.  Whether this appellate opportunity suffices for due process depends on whether the effectiveness of any appeal would be enhanced, or the probable need for appeal obviated, by requiring prior notice of the sentencing judge's intentions or concerns at the trial stage. I believe the answer is no.
If the issue of adequate reflection were one that called for evidentiary litigation by questioning witnesses about the commissioners' thought processes, or by discovering or introducing documentary evidence that would otherwise be unavailable on appeal, then notice in time to litigate at the trial level would be indispensable, virtually as a matter of definition. But a district court's determination that an aggravating circumstance is "of a kind, or . . . a degree, not adequately taken into consideration by the Sentencing Commission," ibid., is not subject to that sort of evidentiary proof. The legal issue of adequate reflection will turn not on an evidentiary record that might be developed at a sentencing hearing, but on documented administrative history and commentary that will be available to any defendant at the appellate stage.
Because a defendant thus has no need for evidentiary litigation, he has no need for notice of judicial intentions in order to focus the presentation of evidence. And while in some cases defense counsel might be able to affect a trial judge's initial view of the adequacy of a Guidelines range in reflecting an aggravating circumstance, the principal safeguard against serving extra time resulting from a mistake about the adequacy of the Guidelines will still be the safeguard available under the statute as now applied, an appeal of law. The opportunity for such a post-trial appeal therefore suffices to minimize the chance of any erroneous deprivation of liberty that might otherwise flow from the sort of legal error in question. 
Finally, a decision to depart from the Guidelines includes a determination that some sentence more onerous than what the Guidelines would permit is not simply permissible, but is in fact appropriate for the particular offense by the particular defendant. See 18 U.S.C. § 3553(b). In assessing the due process implications of this element of the sentencing decision, it is worth pausing to identify the nature of the error that could occur when a judge makes the ultimate decision about a sentence's duration.
The concept of error in a sentence's factual predicate is fairly obvious, and legal error in assessing the conclusiveness of a guideline range, in the sense in which I have just explained it, is equally straightforward. Error in fixing the duration of a sentence outside the guideline range, however, must be understood in terms of the discretionary nature of the judicial function in making that decision.
Such a judgment about what the defendant deserves is discretionary in the sense that its underlying premises of fact, law, and value cannot be so quantified, or stated with such precision, as to require a sentencing court to reach one conclusion and one only. There is, rather, a spectrum of sentences that are arguably appropriate or reasonable, cf. Wasman v. United States, 468 U.S. 559, 563, 104 S.Ct. 3217, 3220, 82 L.Ed.2d 424 (1984) (under pre-Guidelines law, sentencing judge has wide discretion within range permitted by statute); United States v. Tucker, 404 U.S. 443, 446-447, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972) (same), and error in discretionary sentencing must therefore be identified as a failure to impose a sentence that actually falls within this zone of reasonableness.
The Act provides two procedures to minimize the risk that a defendant will be forced to serve a sentence outside the guideline range that is unreasonably long. The first, of course, is the opportunity at the sentencing hearing itself to address the court, apprised by the Guidelines that departure is always possible. As I have noted earlier, even without express notice, counsel may choose to gear part of his argument to the possibility that departure is on the judge's mind. Petitioner's counsel understood that possibility when he contended that "the guidelines are the appropriate range" and asked the court "to consider a sentence within the guidelines." App. 45. For that matter, even if counsel chooses not to argue against departure specifically, pleas for leniency within the guideline range often duplicate the arguments that can be made against upward departure. A defendant thus has both opportunity and motive to make appropriate arguments before the trial judge renders any final decision, even without predeparture notice. Cf. Loudermill, 470 U.S., at 543, 105 S.Ct., at 1494 (even where facts are clear, appropriate action may not be).
The second procedure available to minimize the risk of serving an unreasonable sentence is appellate review of the sentence itself. "If the court of appeals determines that the sentence . . . is outside the applicable guideline range and is unreasonable . . . [and] too high . . . it shall set aside the sentence and remand the case for further sentencing proceedings with such instructions as the court considers appropriate." 18 U.S.C. § 3742(f)(2)(A). While this right to review is only as good as the record that a defendant can present to an appellate court, prehearing notice of a sentencing judge's intentions will not likely enhance the record for the defendant's benefit. A defendant already has the opportunity and impetus to challenge the factual predicate on which a sentence must stand or fall as reasonable or not. And since the comprehensive factual predicate is supplemented by the sentencing judge's statement of reasons for departing from the Guidelines, see § 3553(c), it is difficult to imagine how the record could be more conducive to a comprehensive review of a defendant's claim that his sentence outside the guideline range is unreasonably high.
It is, indeed, just the substantiality of this appeal right that indicates why predeparture notice lies beyond the scope of what due process demands. For if there can be said to be any need for the sort of exact predeparture notice that the Court requires, it does not arise from the risk that a defendant will be forced to serve a sentence that is erroneous by virtue of an unreasonable exercise of discretion. Rather, any incremental advantage that a defendant might obtain from advance knowledge of the judge's thinking will most likely consist of allowing the defendant to be more precise in trying to influence a judge's exercise of discretion within the range of reasonableness that the law allows. The defendant's further advantage, if any, will not be a reduced risk of serving an unreasonable sentence, but an improved opportunity to tailor an exact argument about where the sentence should be set within the reasonable zone. Although the reality of any such advantage that might flow from knowing the judge's mind may be debatable, a defendant's desire for it is nothing new. Litigants have always desired greater opportunities to influence courts in the exercise of discretion within permissible limits. And yet it comes as no surprise that in the days before the Sentencing Reform Act of 1984 due process was not thought to require the notice and arguably enhanced opportunity that the Court today requires. See Greenholtz, 442 U.S., at 16, 99 S.Ct., at 2108. It comes as no surprise simply because the reason that due process imposed no such notice requirement then is the same that it imposes none today: such notice is not in practice necessary to reduce the risk of serving erroneous sentences. Cf. Dixon v. Love, 431 U.S. 105, 114, 97 S.Ct. 1723, 1728, 52 L.Ed.2d 172 (1977).
In sum, existing process provides what is due without resort to the Court's requirement. This conclusion echoes our treatment in Greenholtz of an inmate's liberty interest in early parole, an interest comparable to that of petitioner in a shorter sentence. The Court of Appeals in Greenholtz had required the Parole Board to provide inmates eligible for parole with "written notice reasonably in advance of the hearing together with a list of factors that might be considered." 442 U.S., at 14, n. 6, 99 S.Ct., at 2107, n. 6. We decided that due process required no such notice, and held that it would suffice for the Board to "infor[m] the inmate in advance of the month during which the hearing will be held . . . [and] on the day of the hearing . . . pos[t] notice of the exact time," even though the Board's notice would not include a list of factors on which the Board might rely. Ibid. The notice now required by the Court closely resembles the "list of factors" we rejected as constitutionally unnecessary in Greenholtz.
I do not suggest that the specific notice required by the Court cannot be justified on grounds of policy. There is, however, nothing in the Sentencing Reform Act or the Due Process Clause that provides a basis for today's holding.
I respectfully dissent.
^1 Rule 32(a)(1) provides:
"Sentence shall be imposed without unnecessary delay, but the court may, when there is a factor important to the sentencing determination that is not then capable of being resolved, postpone the imposition of sentence for a reasonable time until the factor is capable of being resolved. Prior to the sentencing hearing, the court shall provide the counsel for the defendant and the attorney for the Government with notice of the probation officer's determination, pursuant to the provisions of subdivision (c)(2)(B), of the sentencing classifications and sentencing guideline range believed to be applicable to the case. At the sentencing hearing, the court shall 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. Before imposing sentence, the court shall also-
"(A) determine that the defendant and defendant's counsel have had the opportunity to read and discuss the presentence investigation report made available pursuant to subdivision (c)(3)(A) or summary thereof made available puruant to subdivision (c)(3)(B);
"(B) afford counsel for the defendant an opportunity to speak on behalf of the defendant; and
"(C) address the defendant personally and determine if the defendant wishes to make a statement and to present any information in mitigation of the sentence.
"The attorney for the Government shall have an equivalent opportunity to speak to the court. Upon a motion that is jointly filed by the defendant and by the attorney for the Government, the court may hear in camera such a statement by the defendant, counsel for the defendant, or the attorney for the Government."
^2 Although the Court stops short of explicitly relying on § 6A1.3 of the Sentencing Guidelines as providing textual support for a notice requirement, its lengthy quotation from the Commentary to that provision, ante, at 133, bears mention. Section 6A1.3 addresses nothing more than disputes about factual matters like the presence or absence of particular offense and offender characteristics. Accordingly, the Introductory Commentary to Part A of Chapter Six of the Guidelines (of which § 6A1.3 is a part) states that "[t]his Part . . . sets forth the procedures for establishing the facts upon which the sentence will be based." (Emphasis added.) Because § 6A1.3 thus deals only with the resolution of fact-based disputes, it simply does not bear on the legal determination whether a given fact, once established, amounts to a circumstance so aggravating as to justify departure.
^3 The Court's statement that we have "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," ante, at 137-138 (emphasis in original) (citing cases), is inapposite. The cases cited by the Court involved statutes that made no provision whatsoever for notice or hearing. By contrast, the Sentencing Reform Act itself, as explained earlier, gives notice that departure is always a possibility; and the express provisions of Rule 32 give the defendant the opportunity to be heard at his sentencing hearing. 
shall impose a sentence of the kind, and within the range, [set forth in the Guidelines,] unless the court 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) (emphasis added). I therefore conclude that a defendant enjoys an expectation subject to due process protection that he will receive a sentence within the presumptively applicable range in the absence of grounds defined by the Act as justifying departure.
The question is "what process is due." Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). " ' "[D]ue process," unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances,' " Cafeteria Workers v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230 (1961), but is "flexible[, calling] for such procedural protections as the particular situation demands." Morrissey, supra, 408 U.S., at 481, 92 S.Ct., at 2600. The methodology for assessing those demands was the subject of Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), where we prescribed a three-part inquiry to consider
"[f]irst, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." Id., at 335, 96 S.Ct., at 903.
Although Mathews itself concerned the adequacy of administrative factfinding procedures, we have not confined the Mathews approach to administrative contexts or to situations where simple factfinding is the sole determinant of governmental action. In Parham v. J. R., 442 U.S. 584, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979), for example, we addressed the constitutionality of Georgia's procedures for involuntarily admitting a child for treatment in a state mental hospital, and explicitly relied on the Mathews
^4 Although conceivably a district court might give predeparture notice at the sentencing hearing itself, without postponing sentencing pending a further hearing on the question of departure, such a practice would be of little use in reducing the risk of error in sentencing determinations. A contemporaneous warning of upward departure might sharpen defense counsel's rhetoric, but it would not be of much help in enabling him to present evidence on disputed facts he had not previously meant to contest, or in preparing him to address the legal issue of the adequacy of the Guidelines in reflecting a particular aggravating circumstance. Contemporaneous notice would, then, probably turn out to be more a formality than a substantive benefit.
While such contemporaneous notice (and any additional argument offered as a result) would be unlikely to add substantially to the length of a sentencing hearing, and, therefore, implicates only a modest government interest in efficiency, even that modest interest is sufficient to balance the de minimis benefit of such notice to the defense. In view of the fact that, as I explain below, existing procedures provide substantial protection against any risk of error, the minimal benefit of contemporaneous notice cannot be said to be a requirement of due process.
^5 I do not address whether due process would require notice prior to a decision by a sentencing judge to depart upward on the basis of facts not contained in the presentence report.
^6 Every Circuit except the Fifth has explicitly held, like the District of Columbia Circuit in this case, see 282 U.S.App.D.C. 194, 196, 893 F.2d 1343, 1345 (1990), that "plenary" or "de novo " review is appropriate. See United States v. Diaz-Villafane, 874 F.2d 43, 49 (CA1), cert. denied, 493 U.S. ----, 110 S.Ct. 177, 107 L.Ed.2d 133 (1989); United States v. Lara, 905 F.2d 599, 602 (CA2 1990); United States v. Ryan, 866 F.2d 604, 610 (CA3 1989); United States v. Chester, 919 F.2d 896, 900 (CA4 1990); United States v. Rodriguez, 882 F.2d 1059, 1067 (CA6 1989), cert. denied, 493 U.S. ----, 110 S.Ct. 1144, 107 L.Ed.2d 1048 (1990); United States v. Williams, 901 F.2d 1394, 1396 (CA7 1990), cert. pending, No. 90-5849; United States v. Whitehorse, 909 F.2d 316, 318 (CA8 1990); United States v. Singleton, 917 F.2d 411, 412 (CA9 1990); United States v. Dean, 908 F.2d 1491, 1494 (CA10 1990); United States v. Russell, 917 F.2d 512, 515 (CA11 1990), cert. denied, 499 U.S. ----, 111 S.Ct. 1427, 113 L.Ed.2d 479 (1991). The Fifth Circuit has held that departure will be affirmed when the reasons for departure are "acceptable." See, e.g., United States v. Murillo, 902 F.2d 1169, 1172 (1990).
^7 There is one class of defendants for whom the right to appeal might not substitute for the ability to argue the issue to the district court: those for whom the Guidelines recommend either no incarceration or a period of incarceration shorter than the time necessary for the disposition of an appeal, but who receive a greater sentence in the exercise of the district court's authority to depart. For such a defendant, a successful appeal could come too late to undo completely the damage done by an erroneous departure decision. However, "a process must be judged by the generality of cases to which it applies, and therefore a process which is sufficient for the large majority of a group of claims is by constitutional definition sufficient for all of them." Walters v. National Assn. of Radiation Survivors, 473 U.S. 305, 330, 105 S.Ct. 3180, 3194, 87 L.Ed.2d 220 (1985). There is no contention that this class of defendants is sufficiently large to affect the due process calculus in this case.