Arguing for Petitioner, Arthur J. Madden, III emphasized the importance of notice in ensuring that all issues influencing sentencing are subject to "thorough adversarial testing." Madden argued that such testing did not occur here because the judge announced her reason for sentencing outside the Guidelines range at the same time that she actually imposed the sentence. Responding to questions from Justices Scalia, Alito, and Ginsburg about the practicalities of requiring notice, Mr. Madden argued that notice would only be required in the "extraordinary cases" "“ such as Petitioner's "“ in which the grounds for departure were not made clear by the presentence report. Mr. Madden agreed with Justice Souter that the real problem here was the lack of time for the defendant to respond to the judge's reason for varying. Turning to the text of Rule 32(h), Justice Scalia asked Mr. Madden why the Court should read the term "departure" more broadly today than it was read when the rule was adopted. Mr. Madden responded that the Court in Burns construed that subsection to implement the structure of Rule 32 more generally. Justice Ginsburg then asked him why the Court should read the 3553(a) factors into Rule 32(h) when the rule-writers failed to make that change when amending the rule in 2007. Mr. Madden responded that the 2007 amendments were not meant to limit the scope of Rule 32(h), but were only intended to allow the probation officer and the court to "think more broadly" in creating the PSR and in sentencing.

Appearing for the United States as respondent, Assistant to the Solicitor General Matthew D. Roberts began by arguing that when Rule 32(h) was originally enacted, it required notice for all deviations then available, and thus that the rule should continue to be read broadly. In addition, Mr. Roberts argued that a notice requirement for variances is required "to prevent evisceration" of the notice requirement for traditional departures because a court may use a variance to impose the same sentence that it could have imposed through a departure. Justice Alito and Chief Justice Roberts asked Mr. Roberts why the question as to the scope of the rule shouldn't be left to the rulemaking process, noting that the rules advisory committee is currently considering the issue. Mr. Roberts responded that the rule-writers have previously stated that they are waiting for the Supreme Court to resolve the question. Turning to the practical requirements of the proposed notice rule, Mr. Roberts said that timing of notice must be "context-specific," but that in "all but the most unusual cases notice a day or two in advance" would be sufficient. Returning to this topic later in the argument, Mr. Roberts stated that a court would have to, at a minimum, identify the relevant 3553(a) factor, and that additional requirements would depend on the broadness of the factor at issue. Mr. Roberts noted that the government's theory required less specific notice than did Petitioner's, and emphasized that the government's rule would not be burdensome. In response to questioning from Justice Stevens, Mr. Roberts emphasized that courts would have to extend or postpone hearings only rarely to allow the litigants to fully explore the issues by, for example, bringing in experts to testify as to the availability of alternative treatments. Turning to the harmlessness issue, Mr. Roberts argued that the failure to give notice in this case was harmless because the PSR had already identified a similar ground for departure, and Mr. Irizarry knew that his future dangerousness would be central to his wife's victim impact testimony. More broadly, Mr. Roberts argued that the Court should address the harmlessness issue in order to provide guidance to the lower courts. Finally, in response to the Chief Justice's statement that, under the government's rule, "I suppose we'll have a lot of appeals about the adequacy of the notice," Mr. Roberts noted that the same questions already come up with regard to traditional departures.

Peter B. Rutledge then argued as amicus curae in support of the judgment below. Mr. Rutledge began by noting that the Court could affirm either because the presentence report put the parties on adequate notice that the defendant's future dangerousness and amenability to alternative treatment would be at issue, or because Rule 32(h) was drafted for "an era of mandatory guidelines" and should not extend to today's system, in which the Guidelines are only advisory. Justice Ginsburg then pressed Mr. Rutledge about whether, under his rule, judges might avoid the notice requirement of Rule 32(h) by recasting what would otherwise be a departure as a variance. Mr. Rutledge responded that the whole premise of the post-Booker advisory system is discretion, that judges still begin their sentencing analysis by consulting the guidelines, and that judges might be inclined to use departures rather than variances insofar as departures may receive greater deference on appeal. Responding to questions about the continued relevance of departures and Rule 32(h), Mr. Rutledge argued that the two main rationales for the Court's ruling in Burns (and the codification of that decision in Rule 32(h)) no longer apply. First, Burns was motivated by a desire to avoid unfair surprise; after Booker, however, parties can no longer expect a sentence within the Guidelines. Second, because parties now come to the hearing with knowledge of the 3553 factors that may be considered, Burns's goal of ensuring full adversarial testing is satisfied without a more specific notice requirement. Mr. Rutledge next noted that, in "rare cases of truly unfair surprise," the parties may request a continuance. In response to questioning from Justice Kennedy, Mr. Rutledge argued that a notice requirement would be unworkable insofar as it would be very difficult for a judge at sentencing to know how much notice is adequate. Mr. Rutledge concluded by noting that, in December 2007, the Advisory Committee on Criminal Rules formed a subcommittee to study the notice requirement, and thus, the "more prudent course" for the Court would be to affirm the judgment below.

On rebuttal, Mr. Madden argued that the right to comment on matters appropriate to sentencing must be accompanied by a right to notice in order to ensure fairness to individual defendants, effective appellate review, and some uniformity in sentencing. Finally, Mr. Madden re-emphasized that cases in which the PSR does not spell out all potential sentencing factors are "extremely rare," and thus that requiring notice would not be unworkable.

Posted in Irizarry v. U.S., Everything Else