                            In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 03-2099
UNITED STATES OF AMERICA,
                                            Plaintiff-Appellant,
                               v.

THOMAS E. SIENKOWSKI,
                                           Defendant-Appellee.
                         ____________
           Appeal from the United States District Court
              for the Eastern District of Wisconsin.
            No. 01-CR-108—Lynn Adelman, Judge.
                         ____________
  ARGUED JANUARY 7, 2004—DECIDED FEBRUARY 20, 2004
                     ____________


  Before FLAUM, Chief Judge, and MANION and EVANS,
Circuit Judges.
  FLAUM, Circuit Judge. This appeal involves the govern-
ment’s objection to the district court’s refusal to apply a
United States Sentencing Guideline § 3B1.1 role enhance-
ment for the defendant Thomas Sienkowski where the
parties had agreed to the enhancement. Section 3B1.1(b)
provides for a three-level sentencing enhancement where a
defendant is a manager or supervisor of criminal activity
involving five or more participants. For the reasons stated
herein, the sentence imposed by the district court is vacated
and the case is remanded for resentencing consistent with
this opinion.
2                                               No. 03-2099

                     I. Background
  Sienkowski was a member and officer of the Milwaukee
Chapter of the Outlaws Motorcycle Club, an international
motorcycle club. The Outlaws consisted of chapters grouped
into geographical regions, with each chapter headed by
officers, all of whom answered to a single international
president. During most of the time period covered in the
indictment, Sienkowski was the vice president of the
Milwaukee Chapter. In 2000, he became president.
  Starting in 1990, members of the midwest Outlaws
chapters began to engage in an escalating pattern of violent
activity as part of a territorial struggle with their major
rival, the Hell’s Angels. The violent activities included the
placement of car bombs, surveillance on rival club members,
and planned murders and armed assaults on rival bikers.
In his role as vice president, Sienkowski attended “bosses
meetings” where presidents and vice presidents of the
various midwest chapters planned and discussed the goals
and progress of the war and made plans to carry out
assaults on rival bikers.
   In 2001, a federal indictment charged Sienkowski, along
with five other members of the Outlaws, with racketeer-
ing and drug-related offenses. Sienkowski pled guilty to one
count of RICO (Racketeer Influenced and Corrupt
Organizations) conspiracy in violation of Title 18, United
States Code, § 1962(d)—specifically, conspiracy to conduct
affairs of the enterprise through a pattern of racketeering
which included murder, arson, extortion, and drug traf-
ficking as the result of the criminal activity that comprised
the biker war. The government alleged that the defendant
Outlaws conspired to engage in seven predicate acts con-
stituting racketeering over the course of the thirteen years
charged in the indictment.
  The parties agreed to recommend a total offense level of
33, which included a three-level aggravating role increase
No. 03-2099                                                 3

under U.S.S.G. § 3B1.1(b) and a three-level decrease for
acceptance of responsibility under U.S.S.G. § 3E1.1. The
presentence report (“PSR”) calculated the defendant’s of-
fense level at 33, including the same upward enhancement
and downward adjustment agreed to by the parties. With a
criminal history category of II, the PSR calculated
Sienkowski’s Guideline range as 151-188 months. Although
Sienkowski objected to certain factual assertions in the
PSR, he did not object to the three-level enhancement.
  At sentencing, the district court accepted the base level of
33, and a three-level downward adjustment for acceptance
of responsibility, but refused to accept the three-level
aggravating role enhancement. The court found that the
government had not provided sufficient evidence to support
the enhancement. The government objected to the court’s
ruling and orally proffered additional evidence supporting
the enhancement. The government asked the court for a
continuance so that witnesses could be brought to testify,
but the court declined to grant one. The court sentenced the
defendant to 120 months in prison.
  The government now appeals the district court’s refusal
to apply the § 3B1.1 enhancement to Sienkowski’s sentence.
Alternatively, the government requests that this Court find
that the district court abused its discretion by failing to
grant the government a continuance to supplement the
record.


                      II. Discussion
  Section 3B1.1(b) of the U.S. Sentencing Guidelines
states “[i]f the defendant was a manager or supervisor
(but not an organizer or leader) and the criminal activity
involved 5 or more participants or was otherwise extensive,
increase by 3 levels.” A determination that a defendant is
not a manager or supervisor of criminal activity involving
five or more participants is subject to the clearly erroneous
4                                                No. 03-2099

standard of review. United States v. Cantero, 995 F.2d 1407,
1413 (7th Cir. 1993). It is the government’s burden to
establish by a preponderance of the evidence facts that
justify applying a sentencing enhancement. Id.
  The district court acknowledged that the criminal activity
involved the requisite number of participants, but the issue
of whether Sienkowski should be considered a manager or
supervisor of the criminal activity proved to be more
difficult. The government contends that the record contains
ample evidence of Sienkowski’s supervisory role.
Sienkowski admitted to participating in planning the
murder of a rival motorcycle club president. Thereafter, and
pursuant to the plan, other members of the conspiracy
traveled to Minneapolis armed with weapons and explosive
devices. Additionally, Sienkowski admitted to, along with
other conspirators, “direct[ing] activities of fellow Outlaws
from a fortified van containing numerous firearms and
other dangerous weapons, in a planned assault on rival
gang members.” The government also asserts that the PSR
establishes that Sienkowski attended a bosses meeting to
plan the detonation of a bomb at the clubhouse of a rival
gang. At the plea hearing, it was noted that other Outlaw
members implemented the bosses’ plan by building, placing,
and detonating the bomb. Furthermore, the government
notes that as chapter vice president, Sienkowski substituted
for the president in his absence.
   The district court was unconvinced that this evidence,
along with the other evidence contained in the record, jus-
tified enhancing Sienkowski’s sentence under § 3B1.1(b). In
its order, the district court reviewed each of the seven
individual predicate acts and was unable to determine that
the defendant managed or supervised anyone. The court
also considered the conspiracy as a whole and reached the
same conclusion. It found that there was no evidence that
Sienkowski supervised or directed others, recruited others
to join the criminal activity, or claimed a larger share of the
No. 03-2099                                                 5

proceeds. Furthermore, even though Sienkowski was
present at the bosses meetings, the district court found that
there was no evidence that his level of participation at those
meetings warranted an offense level enhancement.
  Even when limiting our review to the evidence contained
in the record, the decision of the district court gives us
pause. However, prompting our decision to remand this case
for resentencing is the district court’s decision to disregard
the additional facts proffered by the government at the
sentencing hearing and its refusal to grant the government
a continuance to present additional evidence on the issue of
role enhancement. Upon learning at the sentencing hearing
that the district court intended not to apply the role
enhancement, the prosecutor proffered that if called as a
witness, Edward Anastas, the Milwaukee chapter president
under whom Sienkowski had served as vice president,
would testify that Sienkowski directed Outlaw members in
a planned confrontation with Hell’s Angels at a speedway
event in Lancaster, New York. The government also
represented that Anastas would testify that Sienkowski
supervised armed guard duty at other speedway events.
The judge refused to consider this additional evidence on
the grounds that it was not contained in the PSR and that
he was unconvinced that the government actually possessed
such evidence. In his written opinion, the district judge
explained that he declined to grant the government’s
request that sentencing be adjourned so that further
evidence could be presented because such action would be
futile, as he did not believe that the government possessed
the evidence, and that it would be unfair to the defendant,
“given the prominence of the sentencing guideline determi-
nation in modern federal criminal practice.” United States
v. Sienkowski, 252 F. Supp. 2d 780, 785 (E.D. Wisc. 2003)
  A district court’s refusal to grant an evidentiary hear-
ing is reviewed for abuse of discretion. Fed. R. Crim. P.
32(i)(2) (2002); Cantero, 995 F.2d at 1412. While a party has
6                                                      No. 03-2099

no “right” to a hearing, this Court has held that § 6A1.3 of
the Sentencing Guidelines “requires the district court to
provide a procedure—but not necessarily an evidentiary
hearing—in which the parties may argue contested sentenc-
ing issues.” Id. at 1413 (citing United States v. Levy, 955
F.2d 1098, 1106 (7th Cir. 1992)). While the necessary
procedures vary depending on the nature of the dispute,1
and sentencing courts have discretion to determine which
particular procedures are required in a given context;
statutory and case law make clear that parties are entitled
to notice and an opportunity to be heard regarding disputed
sentencing issues. U.S. SENTENCING GUIDELINES MANUAL §
6A1.3, cmt. (2002) (instructing that when a factor is in
dispute, “the court must ensure that parties have an
adequate opportunity to present relevant information”);
United States v. Jackson, 32 F.3d 1101, 1108 (7th Cir. 1994)
(concluding that “Rule 32 and § 6A1.3 of the Guidelines
require both reasonable advance notice, i.e., knowledge, of
the ground on which the district court is contemplating an
enhancement as well as a meaningful opportunity to
challenge the issue”) (italics omitted); United States v.
Osborne, 931 F.2d 1139, 1149 (7th Cir. 1991) (explaining
that the sentencing court must provide notice to the parties
of the specific facts the court intends to rely on at sentenc-
ing in order to satisfy § 6A1.3’s procedural requirements).



1
  Often times, written statements of counsel or affidavits may be
adequate to satisfy § 6A3.1’s dictates. U.S. SENTENCING GUIDE-
LINES MANUAL § 6A1.3, cmt. (2002); see, e.g., United States v.
Ibanez, 924 F.2d 427, 430 (2d Cir. 1991). However, as the com-
mentary to § 6A1.3 provides, “an evidentiary hearing may some-
times be the only reliable way to resolve disputed issues.” See, e.g.,
United States v. Jimenez Martinez, 83 F.3d 488, 494-95 (1st Cir.
1996) (reversing district court’s denial of defendant’s motion for
evidentiary hearing given questionable reliability of affidavit on
which the district court relied at sentencing).
No. 03-2099                                               7

  The defendant contends that by disclosing the PSR
in advance of sentencing, providing the opportunity to
supplement the PSR with additional information before
sentencing, and allowing the government to proffer the evi-
dence it had to support the enhancement at the hearing, the
district court provided the procedures required by § 6A1.3.
We disagree. The circumstances presented in this case ren-
der those procedures insufficient. The parties’ agreement on
the role enhancement issue combined with the presentence
report’s parallel recommendation lead to this determination
and separate this case from ones reaching different out-
comes.
  The role enhancement issue was not in dispute until the
court raised its own concerns regarding the sufficiency of
the evidence supporting its application. If it had been
previously disputed, both sides would likely have arrived at
the sentencing hearing prepared to present evidence and
put forward their own view of the facts contained in the
PSR. However, as discussed above, both parties agreed
prior to sentencing that the § 3B1.1(b) enhancement was
warranted. The probation department prepared a PSR
designating Sienkowski as a manager or supervisor.
Although Sienkowski submitted a number of objections to
the PSR, he did not dispute the application of the role en-
hancement. Absent notice from the district court, there was
no way for the government to anticipate that there would be
a dispute regarding this particular sentencing enhance-
ment. While sentencing courts are not bound by parties’
agreements in determining the proper application of the
Guidelines, the procedural requirements of § 6A1.3 and
systemic efficiency are contravened when a court fails to
notify the parties that such agreements are in fact disputed
by the court itself.
  To conclude otherwise, as the government noted at oral
argument, would turn sentencing hearings into trials
and the benefits of plea agreements would be eliminated.
8                                                No. 03-2099

Ordinarily when both parties agree to a sentencing ad-
justment, they do not come to court armed with the tes-
timonial, documentary, and physical evidence necessary to
prove the underlying basis of their agreement. Serious
practical problems are posed by a rule that puts parties in
the position of needing a reserve bench of witnesses at
sentencing hearings ready to testify to any and all issues
that the court may sua sponte determine are unsupported
by the record. Accordingly, since both parties had agreed to
a particular sentencing enhancement, when the court found
that the facts in the record were insufficient to support that
enhancement, the court should have notified the parties in
advance of the sentencing hearing of the issue in dispute or
at the sentencing hearing granted a continuance to the
party seeking to supplement the record on that issue.
  In United States v. Saunders, 973 F.2d 1354 (7th Cir.
1992), we rejected the defendant’s argument that he was
entitled to notice prior to the sentencing hearing that the
district court intended to reject the presentence report
recommendation that he be given a two-level reduction for
acceptance of responsibility. We concluded that the inclu-
sion of the recommendation in the presentence report gave
Saunders sufficient notice that it was an open question at
the sentencing hearing and that “advance warning of the
sentencing judge’s intent to reject a recommended [sentenc-
ing adjustment]” was unnecessary. Id. at 1364. What
distinguishes Saunders from the case before us is that
Saunders had not entered into an agreement with the
government on the disputed issue. When parties have not
entered into a formal agreement, the inclusion of a rec-
ommendation in the PSR may be sufficient notice that the
issue is an open question at sentencing; but when the
parties have, pursuant to a plea agreement, agreed to a
sentencing recommendation, the mere inclusion of a paral-
lel recommendation in the PSR is unlikely to be a sufficient
signal to the parties that the issue might be contested at
the sentencing hearing.
No. 03-2099                                                  9

   In United States v. Jackson we determined that when a
trial court relies on a Guideline factor not in the PSR nor in
the prosecutor’s recommendation, contemporaneous notice
at the sentencing hearing that the court is considering an
enhancement fails to satisfy the requirements of Rule 32
and § 6A1.3. 32 F.3d at 1101. In reaching this conclusion,
the Jackson Court noted that, “[t]he right to be heard has
little reality or worth unless one is informed that a decision
is contemplated.” Id. at 1106 (quoting Burns v. United
States, 501 U.S. 129, 132 (1991) (internal citations omit-
ted)). Similarly, when a trial judge finds there to be insuffi-
cient evidence to support a Guideline enhancement that
was recommended in the PSR and agreed to by both parties,
notice of that finding at the sentencing hearing falls short
of providing the parties a meaningful opportunity to be
heard. The parties in this case were likely as surprised by
the district court’s announcement as if the enhancement
had never been contemplated in the first place, as was the
case in Jackson. In both situations the parties have no prior
indication that the issue is in dispute and their rights to
challenge sentencing issues are impaired when the district
court denies a requested opportunity to prepare and call
witnesses, as allowed under § 6A1.3.
  Given the lack of advance notice in this case, the district
court should have granted the government’s request for a
continuance. Through the PSR, the government had pro-
vided extensive facts to the court regarding Sienkowski’s
participation in the Outlaw conspiracy. Since the district
judge believed these facts to be insufficient, he should have
been willing to consider the additional evidence the gov-
ernment had to offer that may have provided the details
that the judge found wanting. Contrary to the district
court’s position that all facts necessary to support the
enhancement must be set forth in the PSR, any information
may be considered as long as it has sufficient indicia of
reliability. United States v. Watts, 519 U.S. 148, 156 (1997);
10                                               No. 03-2099

Nicholas v. United States, 511 U.S. 738, 748 (1994). Fur-
thermore, there was no reason for the district court to
believe that the government would be unable to produce the
evidence proffered. Certainly, the Milwaukee club presi-
dent, Edward Anastas, would be knowledgeable about the
role and specific activities of the defendant, his second in
command. Indeed, Anastas was a major source for other
information contained in the PSR, which the district court
did accept as factually correct and reliable.
  In denying the government’s motion for a continuance,
it appears that the district judge was at least partially
motivated by what he perceives to be “the prominence of the
sentencing guideline determination in modern federal
criminal practice.” Sienkowski, 252 F. Supp. 2d at 785.
In his order, the trial judge expressed his concern that as
more defendants enter into plea agreements, sentencing
hearings are essentially replacing trials, yet defendants are
afforded fewer procedural safeguards at the sentencing
stage than they are at trial. Id. at 785-86. Clearly, when a
court disagrees with federal law the appropriate response
is not to utilize judicial discretion to achieve its preferred
outcome. We agree that the trial court “must maintain its
role in the sentencing process”; “carefully review the PSR to
determine the appropriateness of the guideline determina-
tions contained therein”; and “hold the government to its
burden”. Id. at 786. At the same time, neutrality is always
a court’s essential objective and that goal is not well served
when a jurist appears to act in a partial manner.
  Our decision today is one of narrow applicability. In this
case the parties pre-agreed to a sentencing enhancement;
the PSR made a parallel recommendation regarding the
enhancement to the court; the facts supporting the enhance-
ment contained in the record were not so utterly insufficient
that no reasonable judge could have applied the enhance-
ment; and the government proffered additional evidence at
the sentencing hearing in support of the enhancement.
No. 03-2099                                                11

Given these circumstances, the district court abused its
discretion by not granting a continuance to allow the
government to supplement the record. Since the applicabil-
ity of the role enhancement was not in dispute, a continu-
ance would not have prejudiced the defendant. Obviously,
we would reach the same conclusion if the positions were
reversed and it was the defendant, rather than the govern-
ment, who was adversely affected by the district court’s
ruling. However, a variance in any of the other aforemen-
tioned factors would likely compel a different outcome.
  It is well-established that district courts make final sen-
tencing determinations and enjoy considerable discretion in
doing so. We emphasize that our decision today does not
alter any of our previous decisions regarding a district
court’s discretion in making sentencing determinations or
refusing to grant evidentiary hearings. District courts are
not bound by the parties’ agreement in determining the
proper application of the Guidelines and must make their
own determinations in light of the evidence; however, when
a district court’s decision regarding the application of an
enhancement is in conflict with both the PSR’s recommen-
dation and the parties’ formal agreement, the court needs
to either alert the parties to the disputed issue prior to the
sentencing hearing or provide notice at the sentencing
hearing and then agree to a continuance if a party makes
an offer of proof and requests an opportunity to supplement
the record.
  It is quite possible that by holding an evidentiary hearing
the district court will find the facts necessary to justify
enhancing Sienkowski’s sentence under § 3B1.1(b).


                     III. Conclusion
  We VACATE the defendant’s sentence and REMAND this
case to the district court for further proceedings consistent
with this opinion.
12                                        No. 03-2099


A true Copy:
      Teste:

                    ________________________________
                    Clerk of the United States Court of
                      Appeals for the Seventh Circuit




               USCA-02-C-0072—2-20-04
