          United States Court of Appeals
                     For the First Circuit

No. 06-1558

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                    MANUEL A. VEGA-SANTIAGO,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

         [Hon. José Antonio Fusté,   U.S. District Judge]


                              Before
                       Boudin, Chief Judge,
       Torruella, Lynch, Lipez and Howard, Circuit Judges.


     Mark S. Davies and Johnny Rivera-González, with whom Walter
Dellinger, Ryan W. Scott, and O'Melveny & Myers LLP were on
supplemental brief for appellant.
     Vijay Shanker, U.S. Department of Justice, Criminal Division,
Appellate Section, with whom Rosa Emilia Rodríguez-Vélez, United
States Attorney, Nelson Pérez-Sosa, Assistant United States
Attorney, Chief, Appellate Division, and Thomas F. Klumper,
Assistant United States Attorney, were on supplemental brief for
appellee.



                        February 21, 2008



                         OPINION EN BANC
          BOUDIN, Chief Judge.   Manuel Vega-Santiago appealed from

his conviction on one count of armed carjacking, 18 U.S.C. §

2119(1) (2000), and two counts of related weapons offenses, id. §§

924(c)(1)(A), 922(k), asserting various trial errors.       He also

appealed from his prison sentence of 240 months, which represented

an upward variance from the sentencing guidelines range of 177 to

191 months that would otherwise have applied to him.

          A panel of this court affirmed Vega's conviction and

sentence, remanding only to correct a discrepancy between the

written and oral judgments.   United States v. Vega-Santiago, ---

F.3d ---, 2007 U.S. App. LEXIS 25420 (1st Cir. Oct. 31, 2007).   We

granted rehearing en banc to consider the panel's ruling that the

district judge must provide "notice" to litigants before imposing

a sentence outside the guideline range--a requirement that the

panel found satisfied in this case.

          The facts in detail can be found in the panel opinion.

Vega, 2007 U.S. App. LEXIS 25420, at *2-*9.    Pertinently, here the

district judge chose--pursuant to the sentencing regime established

by the Supreme Court, United States v. Booker, 543 U.S. 220 (2005);

see also United States v. Jimenez-Beltre, 440 F.3d 514 (1st Cir.

2006) (en banc)--to impose a sentence above the range applicable

under the sentencing guidelines.       He did so after weighing the

sentencing factors outlined in 18 U.S.C. § 3553(a)--in particular,

the nature of the offense and the background of the offender.


                                 -2-
Neither the presentence report nor the government's pre-hearing

submissions had suggested varying from the guidelines.

          The question before us is whether a district court,

before sua sponte imposing a sentence outside the recommended

guideline range, must automatically provide advance notice to the

parties of its intent to do so and its contemplated reasoning.   The

circuit courts being divided,1 the Supreme Court is now likely to

decide the issue, United States v. Irizarry, 458 F.3d 1208, 1212

(11th Cir. 2006), cert. granted, 2008 U.S. LEXIS 409 (Jan. 4, 2008)

(No. 06-7517), but until it does, district judges in this circuit

are entitled to guidance on an issue potentially present in every

sentencing.   Our answer is that notice is sometimes, but not

always, required.




     1
      Five circuits have held that notice is required.       United
States v. Anati, 457 F.3d 233, 237 (2d Cir. 2006); United States v.
Davenport, 445 F.3d 366, 371 (4th Cir. 2006); United States v.
Cousins, 469 F.3d 572, 580 (6th Cir. 2006); United States v. Evans-
Martinez, 448 F.3d 1163, 1164 (9th Cir. 2006); United States v.
Atencio, 476 F.3d 1099, 1104 (10th Cir. 2007).
     Four have concluded to the contrary. United States v. Vampire
Nation, 451 F.3d 189, 195 (3d Cir. 2006); United States v. Mejia-
Huerta, 480 F.3d 713, 722 (5th Cir. 2007), petition for cert.
filed, 75 U.S.L.W. 3585 (Apr. 18, 2007) (No. 06-1381); United
States v. Long Soldier, 431 F.3d 1120, 1122 (8th Cir. 2005); United
States v. Irizarry, 458 F.3d 1208, 1212 (11th Cir. 2006), cert.
granted, 2008 U.S. LEXIS 409 (Jan. 4, 2008) (No. 06-7517); see also
United States v. Walker, 447 F.3d 999, 1006 (7th Cir. 2006)
(holding notice no longer required even for traditional
departures).

                               -3-
                Much   of   the   dispute    among   our    sister    circuits    has

concerned the applicability of Federal Rule of Criminal Procedure

32(h).      The rule provides that:

                Before   the  court   may  depart   from  the
                applicable sentencing range on a ground not
                identified for departure either in the
                presentence report or in a party's prehearing
                submission, the court must give the parties
                reasonable notice that it is contemplating
                such a departure. The notice must specify any
                ground on which the court is contemplating a
                departure.

                Prior to Booker, the guidelines were mandatory save for

"departures" that could be allowed by the district judge only in

accordance with rules imposed both by the governing statute and the

guidelines themselves.            The term "departures" refers specifically

to   just       such   deviations.        Rule   32(h)     speaks    explicitly    of

"departures," a term with a precise legal meaning.                         U.S.S.G. §

1B1.1 cmt. n. 1(E) (2007); United States v. Diaz-Villafane, 874

F.2d 43, 49 (1st Cir. 1989).             Departures continue to be available

after Booker and it is to them that Rule 32(h) is addressed.

                Booker has created new latitude for district judges by

permitting them to treat the guidelines as advisory and, after

calculating the guideline sentence (including any departure), to

impose      a    different    sentence      based    on    the   broader     criteria

identified in the statute.               Such deviations have been variously

labeled--"variance"          is    one    common     term--but      they    are   not

"departures" either in technical terminology or in common parlance.


                                          -4-
On its face, Rule 32(h) cannot apply of its own force to variances,

a distinct concept developed after the rule was promulgated.

             It is far from clear whether the drafters of the rule

would have included variances within the rule if they had then

existed, but it does not matter: a formal rule can be changed

through     the   statutorily    prescribed   rulemaking   process,      which

includes congressional oversight of proposed changes, but it cannot

be rewritten ad hoc by an individual judge or panel.                      "[A]

legislature says in a statute what it means and means in a statute

what it says there."        Conn. Nat'l Bank v. Germain, 503 U.S. 249,

253-54 (1992).      So, too, with formally adopted rules.

             The more difficult question is whether the reasoning that

prompted Burns v. United States, 501 U.S. 129 (1991)--the decision

that Rule 32(h) codified--should be extended without qualification

to   this   new   context   to   establish    a   judicially   created    rule

requiring automatic advance notice for variances.                The Supreme

Court could, and might in the end, choose to do so.            But this would

be an expansion of Burns' holding, which was specifically directed

to departures.2




      2
      The government, which has an obvious interest in obtaining
notice of contemplated downward variances, has reversed the
position it took before the panel and now insists that Rule 32(h)
does apply.    But it imbues the notice requirement with such
flexibility as to whether and when notice must be given that its
position is ultimately quite different from Vega's.

                                     -5-
              The Court in Burns held that courts may not depart from

the guidelines if neither the presentence report nor the pre-

hearing submissions of the parties had requested such a departure,

unless reasonable notice is provided. That requirement was said to

be implicit in the demands of a federal rule giving parties the

right    to     comment    on   "matters    relating    to   the    appropriate

sentence."3      Without notice, the Court reasoned, counsel will be

unprepared      to    comment   meaningfully   on    grounds    for   departure

proposed by the judge, resulting in a lack of adversarial testing.

Burns, 501 U.S. at 135.

              There are competing arguments as to whether and how far

Burns and its rationales bear on variances; and the Supreme Court

will answer those questions in due course.             But our view is that,

in this different context, adopting a mechanical rule would be a

mistake: it would not respond to the realities of a system in which

judges are afforded much broader discretion than in the recent

past,    it   would    reinforce   guideline      sentencing,   and    it   would

considerably complicate and prolong the sentencing process.

              A bright-line advance notice requirement for potential

departures fit sensibly within the mandatory guideline regime in

place    when    Burns    was   decided.    The    guidelines      provided   for

departures, and articulated specific grounds upon which they can


     3
      This rule remains in force, Fed. R. Crim. P. 32(i)(C), but
reflects only a general policy on the right to comment and does not
specify at all whether and when notice of anything must be given.

                                      -6-
(and cannot) be premised.         E.g., U.S.S.G. §§ 4A1.3, 5K1.1-2.23.

Although   in     theory   the   possible   grounds   for   departure   were

unbounded, in practice they functioned almost as a set of auxiliary

guidelines.     See United States v. Koon, 518 U.S. 81, 95-96 (1996)

("The court must bear in mind the Commission's expectation that

departures based on grounds not mentioned in the Guidelines will be

'highly infrequent.'").

           Thus, departures presented a finite number of specific,

discrete   (and    often   binary)   determinations    that   would   govern

departures and thus the ultimate sentence. It made sense to advise

the parties in advance of any proposed departure so as allow them

to dispute the facts critical to the departure and to assist the

court on pertinent legal questions.4            The premised facts were

reviewable for clear error; the legal rulings, fully reviewable.

18 U.S.C. § 3742(e).        In short, departures looked much like the

customary fare of adversarial litigation.

           Under Booker, Rita v. United States, 127 S. Ct. 2456

(2007), and now Gall v. United States, 128 S. Ct. 586 (2007), the

sentencing inquiry, after calculating the guideline range, is far

more broad, open-ended and discretionary.              Under Booker, the

district court must independently consider the statutory sentencing



     4
      Departures often required the judge to analyze not only the
guidelines, but also the policy statements of the Commission (which
were binding, Stinson v. United States, 508 U.S. 36 (1993)), and
the circuit law relating to appropriate and inappropriate grounds.

                                     -7-
factors, 18 U.S.C. § 3553(a), which are phrased in very general

terms    (e.g., "the nature and circumstances of the offense"; the

need for the sentence to "to reflect the seriousness of the

offense").       A variant sentence may then be imposed based on a

complex of factors whose interplay and precise weight cannot even

be precisely described.

               The district judge draws on information from the trial,

the     pre-sentence     report     and     the    parties'    commentary,     the

defendant's      allocution,   victims'         statements,   letters,   its   own

review    of    these   materials    before       the   sentencing   hearing   and

whatever is added during the hearing.              Throughout the hearing, the

judge may well be revising his views depending on what is presented

and how counsel respond to questions.              This 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.

               Yet in order to provide advance notice of any value, a

district court would have to advise not only that a variance is

possible but also the ground and reasoning behind it before he has

even heard the full presentation.               This is very different than the

identification in advance of a particular ground of departure that

may or may not be invoked.           "[R]equiring advance notice of 'any

ground' . . . would undoubtedly prove to be unworkable."                  United

States v. Vampire Nation, 451 F.3d 189, 197 (3d Cir. 2006).




                                          -8-
            Further, a mechanical requirement of such notice is

unnecessary.     In the normal case a competent lawyer--and for

incompetence other remedies are available--will anticipate most of

what might occur at the sentencing hearing--based on the trial, the

pre-sentence report, the exchanges of the parties concerning the

report, and the preparation of mitigation evidence. Garden variety

considerations of culpability, criminal history, likelihood of re-

offense, seriousness of the crime, nature of the conduct and so

forth should not generally come as a surprise to trial lawyers who

have prepared for sentencing.

            Were a mechanical notice rule imposed, some judges would

shy away from imposing non-guideline sentences that the parties had

not proposed in advance, increasing the "gravitational pull" of the

guidelines, United States v. Trujillo-Terrazas, 405 F.3d 814, 819

(10th Cir. 2005), and compromising the greater freedom sought by

Booker and Rita.     See, e.g., Rita, 127 S. Ct. at 2465 (holding that

a district judge "does not enjoy the benefit of a legal presumption

that the Guidelines sentence should apply").          Alternatively, the

judge would often have to employ a burdensome two-stage regime,

explaining at the end of the first hearing his proposed sentence

and then conducting a follow-up hearing based on such notice.

            The preferable solution is thus not a mechanical rule

mandating   formal    notice   in   every   case   where   the   judge   may

conceivably vary from the guidelines.         Rather, when proposing to


                                    -9-
adopt a variant sentence relying on some ground or factor that

would unfairly surprise competent and reasonably prepared counsel,

a judge must either provide advance notice or, on request, grant a

continuance in order to accommodate a reasonable desire for more

evidence or further research.    No formal rule is required for us to

adopt such a prudential policy as a matter of precedent.

          In practice such cases of unfair surprise, probably rare,

are not that hard to identify; and this case is not one of them.

Here, the district judge relied primarily on three particular

details of the crime--that it involved the invasion of a home,

death threats and a near-miss firing of a gun--and that Vega had

been previously arrested (but not convicted) on charges of violent

crime.   The details of the crime were well known to counsel; and

Vega had admitted his prior "brushes with the law" which were noted

in the pre-sentence report.5

          Defense   counsel    may   not   have   anticipated   that   the

district judge would rely upon those particular facts to impose an

above-guideline sentence, but having that knowledge in advance

would not have made any obvious difference.        The facts themselves

were familiar and undisputed, so there is no concern here that



     5
      Vega points out that the district judge agreed to strike that
portion of the PSR at the start of the sentencing hearing. But, as
the judge explained when delivering the sentence, it was removed
only because Vega's counsel was concerned that the Bureau of
Prisons would use it to "jack up his security level." The truth of
the admission was not contested.

                                 -10-
counsel might have been able, with notice, to challenge them.    And

nowhere else in the law is the judge required to explain his

reasoning before counsel have argued to him.

          In granting rehearing en banc we invited supplemental

briefing not only on the panel's automatic notice requirement but

on whether there was unfair surprise in this case. Defense counsel

have added new arguments to those earlier presented to the panel.

But we agree with the panel's original view that unfair surprise

has not been established.   At sentencing defense counsel had ample

opportunity and incentive, without any advance notice of a possible

variance, to make the same arguments now offered to us.

          First, Vega submits that mitigating evidence about his

family circumstances could have been offered.       But mitigating

evidence would have been relevant to sentencing with or without a

variance from the guideline range. The principal factor cited, the

death of Vega's father shortly before the crime, was readily

detectable by counsel and potentially useful to argue for a lower

sentence within or (under Booker) below the guideline range.

          Next, Vega contends that a carjacking that involves

invading a home is no worse, for purposes of the section 3553(a)

factors, than an ordinary carjacking.   We fail to see how further

notice was necessary in order to prepare that argument about the

seriousness   of    the   offense   facts--a   typical    sentencing

consideration.   Comparing and contrasting a defendant's particular


                                -11-
crime to its "heartland" prototype is always relevant.     That the

judge might think that a home invasion carried an extra sense of

menace is hardly a surprise.

            Finally, Vega says that the death threat and firing of

the gun were already taken into account by the guidelines, and that

with more notice, defense counsel would have been prepared to point

that out.   But a factor that is worked into the guideline calculus

may still be considered by a district judge in the section 3553(a)

analysis. See, e.g., United States v. Scherrer, 444 F.3d 91, 93-94

(1st Cir. 2006) (en banc), cert. denied, 127 S. Ct. 927 (2007).

Anyway Vega's counsel did emphasize--without requiring any special

notice--that the enhancements provided in the guidelines were

sufficient.    The district judge simply did not agree.

            Parts I, II, III(A), and III(C) of the panel opinion are

reinstated; Vega's conviction and sentence are affirmed; and the

case is remanded for correction of the written judgment.

            It is so ordered.



                                Dissents follow.




                                   -12-
            TORRUELLA, Circuit Judge (Reserving and Dissenting).

The circumstances that force me to state my views at this time

leave me no alternative but to partially emulate Justice Felix

Frankfurter's response to similar constraints, about which he

stated:

                   Time is required not only for the
            primary task of analyzing in detail the
            materials on which the Court relies. It is
            equally required for adequate reflection upon
            the meaning of these materials and their
            bearing on the issues now before the Court.
            Reflection is a slow process. Wisdom, like
            good wine, requires maturing.

                   Moreover, the judgments of this Court
            are collective judgments. They are neither
            solo performances nor debates between two
            sides, each of which has its mind quickly made
            up and then closed. The judgments of this
            Court   presuppose  full    consideration   and
            reconsideration by all of the reasoned views
            of each. Without adequate study there cannot
            be adequate reflection.       Without adequate
            reflection    there    cannot    be    adequate
            deliberation and discussion. And without
            these, there cannot be that full interchange
            of minds which is indispensable to wise
            decision and its persuasive formulation.

                   The circumstances being what they are,
            I am forced, deeply as I regret it, to reserve
            for a later date [the full] expression of my
            views.

Reid   v.   Covert,   351   U.S.   489,    492   (1956)   (Frankfurter,   J.,

reserving).

            This solution is, of course, hardly a satisfactory one,

as it would leave me, an active member of this Court, without an

effective voice and vote at a crucial juncture in this proceeding

                                    -13-
-- a result which affects the substantive rights of the parties to

this appeal.    I believe that the parties are entitled to the

benefit of my views, even if they are considered to be in error by

some of my colleagues.

           Although I am in substantial agreement with the views

expressed by Judge Lipez in his excellent dissent, I am also deeply

concerned by the serious policy, procedural, and substantive issues

raised by the unwarranted haste which has characterized this en

banc proceeding.   Accordingly, I must state my views, even if in a

preliminary and incomplete fashion.

           The convocation of this particular en banc proceeding

highlights the whimsical and uneven manner in which this circuit

often applies the rehearing rules.     Indeed, both the granting and

denying of petitions for these extraordinary proceedings evince a

double-standard with respect to which issues are deemed meritorious

of such review. See, e.g., Cerqueira v. American Airlines, No. 07-

1824 (1st Cir. XXXX) (Torruella, J. dissenting).    Time constraints

do not allow for an exhaustive inventory of this asseveration, but

the circumstances of this present appeal demonstrate one such

example.

           In this case, before either the appellant or the appellee

had the opportunity to seek en banc review, the court undertook a

rather unusual procedure and ordered en banc rehearing sua sponte.

The appeal thus metamorphosed into one more relevant to, and


                                -14-
reflective of, a judicially fueled agenda.              That agenda became

evident in light of the Government's own change of heart:               both

sides now agree that Rule 32(h) applies to post-Booker variances.

Furthermore, the issue for which the en banc court was convened is

presently before the Supreme Court, see United States v. Irizarry,

458 F.3d 1208 (11th Cir. 2006), cert. granted, 128 S. Ct. 828

(2008), and will most likely be decided in a definitive way before

June.   At a minimum, circumstances would seem to counsel awaiting

the   decision   of   the   Supreme    Court   rather   than   unnecessarily

investing our limited judicial resources on this one.

           In any event, I am opposed to the majority's disregard

for the unequivocal language of Rule 32(h) and the clear mandate of

the Supreme Court in Burns v. United States, 501 U.S. 129 (1991).

Specifically, in Burns, the Court observed that the purpose of Rule

32 was to promote "focused, adversarial resolution of the legal and

factual issues."      Id. at 137.      The Court recognized that in the

absence of notice, parties would make arguments "in a random and

wasteful way by trying to anticipate and negate every conceivable

ground on which the district court might choose to depart on its

own initiative" or, worse yet, "the parties [may] not even try to

anticipate such a development," and leave the contemplated grounds

untested by the adversarial process.           Id.

           The majority's opinion substitutes these requirements

with what is, in effect, an unauthorized rule-making amendment to


                                      -15-
Rule 32 by this court.       The majority has concocted a vague standard

for pre-sentence notice which will inevitably lead to interminable

litigation as to what a "competent and reasonably prepared counsel"

would have anticipated.        Slip Op. at 10.          This will undoubtedly

have the effect of causing more delay and a greater waste of

judicial resources than the occasional continuance forecast by the

majority's opinion were the Rule 32 standard to be followed.                  See

Slip Op. at 8.          The fact is that such continuances might be

necessary   in   only    a   handful    of    cases.6     In   any   event,   the

postponement of sentencing is a minor inconvenience to the judicial

system when weighed against the basic due process protections

afforded by the Rule 32 notice requirements.              See Burns, 501 U.S.

at 138 (noting that "were 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"

(emphasis added)).       I dissent.




     6
      Of the federal post-Booker cases, only 1.5% of cases had
sentences above the Guidelines and only 11.9% were below (53.5% of
which arose in the five circuits which already require the Rule 32
notice). See U.S. Sentencing Comm'n, 4th Quarter Report (2006),
available at
http://www.ussc.gov/sc_cases/Quarter_Report_4th_07.pdf.

                                       -16-
           LIPEZ, Circuit Judge, dissenting. I respectfully dissent

from the majority's conclusion that the reasonable notice required

by Burns v. United States, 501 U.S. 129 (1991), and Federal Rule of

Criminal Procedure 32(h) is inapplicable to Guidelines variances.

The majority's rejection of a reasonable notice requirement in

favor of a new standard based on whether "some ground or factor

. . . would unfairly surprise competent and reasonably prepared

counsel" leaves district court judges without the very guidance

the majority purports to offer them.         Indeed, the government now

also agrees that the reasonable notice required by Burns and Rule

32(h) must apply to Guidelines variances to ensure full adversarial

testing of the issues related to sentencing.

           Moreover, having further considered the issue in the

context of en banc briefing and argument, I have become convinced

that the reasonable notice requirement means notice of a possible

variance   being   contemplated   by   the   judge   in   advance   of    the

sentencing hearing. Such prehearing notice is most consistent with

Rule 32's directive that parties be given the opportunity to

comment on matters "relating to an appropriate sentence."           Fed. R.

Crim. P. 32(i)(1)(C).    This rule does not mean that every failure

to give prehearing notice will require a new proceeding.                 Such

errors lend themselves to harmless error review.            In this case,

however, I cannot find that the error was harmless, and I therefore




                                  -17-
would vacate Vega's sentence and remand for a new sentencing

hearing.

                                 I.

           My conclusion that notice may be deemed "reasonable" only

if given in advance of the sentencing hearing is informed by

multiple considerations.   Most importantly, the interest at stake

for the defendant – the length of incarceration – could not be more

critical, even when the potential difference in a defendant's

sentence would be "merely" a matter of months.   Whether or not the

Due Process Clause is implicated,7 the defendant's opportunity to

comment meaningfully when a court contemplates a sentence outside

the Guidelines is of utmost importance.

           It also is significant, as the panel opinion observed,

that implicit in Burns and Rule 32(h) "is the understanding that

Rule 32(h) notice would serve as an alternative to the forms of

prehearing notice expressly referenced" in the rule, i.e., the

presentence report or a party's prehearing submission.       United

States v. Vega-Santiago,   --- F.3d ---, 2007 U.S. App. LEXIS 25420

(1st Cir. Oct. 31, 2007), at *38 (emphasis in original).    Thus, a

rule of pre-hearing notice is more consistent with the principles




     7
       The Supreme Court noted in Burns that its construction of
Rule 32 avoided "the serious question whether notice in this
setting is mandated by the Due Process Clause." 501 U.S. at 138.

                                -18-
articulated in Burns and incorporated into Rule 32.8              To require

counsel   to   respond   off-the-cuff      to   a   previously   unannounced

rationale for a non-Guidelines sentence is to deny the very period

of deliberation that "notice" is intended to guarantee.            Even when

competent counsel is familiar with all of the facts of the crime

and the general principles of sentencing law, he or she may not

immediately appreciate their relevance to the proposed variance

from the Guidelines.      Accord United States v. Calzada-Maravillas,

443 F.3d 1301, 1304 (10th Cir. 2006) (observing that the "key

component" of the notice requirement is "notice in advance of the

sentencing hearing").

           In addition, a bright-line rule of prehearing notice

would provide unambiguous direction to both the parties and the

court, with minimal burden.      We must keep in perspective the small

number of cases at issue here.          At the en banc oral argument, the

government represented that, in most instances, departures or

variances are either proposed by the Probation Department in the

presentence report or requested by one of the parties.                   This

understanding    that    sua   sponte    variances    by   the   court   occur

infrequently informed the conclusion reached by the original panel,

which included an experienced district court judge. It will be the



     8
       I am, of course, well aware that Rule 32(h) applies by its
terms only to sentencing departures.     It is the principles of
Burns, which are reflected in Rule 32(h), that make the notice
requirement equally applicable to sentencing variances.

                                   -19-
exceptional occasion when a court must provide its own prehearing

notice of a contemplated ground for a variance; in such instances,

the court would be able to alert the parties with a brief written

order.   A continuance would be necessary even more rarely, when a

rationale for a variance first arises at the sentencing hearing.

           Moreover, requiring that notice be given as a matter of

course before the hearing reduces the possibility that the court

will be blind-sided by a party's last-minute attempt to secure a

non-Guidelines sentence.        The judge is obviously in a better

position to evaluate the merits of a variance if it is proposed in

advance.    With a rule of advance notice, the government and

defendant will have greater incentive to present all arguments for

a   non-Guidelines   sentence    in   their   prehearing   submissions,

facilitating sentencing proceedings that most fairly take into

account all relevant considerations.

           However, even a rule of advance notice will not eliminate

some questions of reasonableness.        The content of the notice and

its timing in relation to the date of the hearing and the issues to

be addressed are elements of reasonableness.       As for content, the

panel opinion pointed to the requirement in Burns that the notice

"specifically identify the ground on which the district court is

contemplating an upward departure." 501 U.S. at 138-39. A similar

requirement should apply to a contemplated variance.          Any less

exacting requirement would impose on the parties "the burden of


                                  -20-
guessing the particular grounds on which the court might choose to

increase [or decrease] the sentence."    Vega-Santiago, --- F.3d at

---, 2007 U.S. App. LEXIS 25420, at *36.

          As for timing, reasonableness will depend on whether the

parties were given sufficient opportunity to prepare meaningful

comment on the previously unannounced ground for deviating from the

Guidelines. If addressing the court's contemplated rationale would

require minimal legal research or investigation of facts, a brief

period of time would be adequate.     But if, for example, the court

announced that it might rely on mitigation evidence presented in

letters submitted by multiple individuals, the parties might need

time to review the submissions and conduct further investigation.

In such circumstances, reasonable notice would have to be given far

enough in advance of the hearing to accommodate such preparation.

          Regardless of the complexity or novelty of the court's

sua sponte rationale, at least some advance warning is crucial to

ensure the most effective advocacy and, in turn, "the thorough

adversarial testing contemplated by federal sentencing procedure,"

Rita v. United States, 127 S. Ct. 2456, 2465 (2007).          Other

circuits also have explicitly adopted this view. See, e.g., United

States v. Cole, 496 F.3d 188, 191 (2d    Cir. 2007) ("[N]otice given

during the course of the sentencing hearing and put into effect

less than two hours later was insufficient."); United States v.

Flanders, 491 F.3d 1197, 1220 (10th Cir. 2007) (finding that the


                               -21-
court's announcement on the first day of sentencing that it might

impose a non-Guidelines sentence was "plainly insufficient under

Rule 32(h)").

           A failure to provide reasonable notice will not always

require resentencing.      In some cases, the reviewing court may be

satisfied that lack of proper notice was harmless because it would

not have placed the defendant in a position to comment more

effectively on the proposed variance.        Where, for example, counsel

had the opportunity to provide a thoughtful response to the court's

rationale for a variance and where the defendant on appeal offered

no additional rebuttal to the court's rationale, it would be

appropriate to conclude that the lack of notice was harmless.              If,

however, a defendant identifies plausible rebuttals to the court's

rationale that could have been made if counsel had been given time

to    prepare,   the   principles    of    Burns   require      resentencing.

Otherwise, "a critical sentencing determination will go untested by

the    adversarial     process   contemplated      by    Rule   32   and   the

Guidelines."     Burns, 501 U.S. at 137.

           The harmless error analysis addresses many of the same

considerations     that   were   included    in    the   panel's     favorable

evaluation of the reasonableness of the notice provided near the

outset of the sentencing hearing in this case.             However, for the

reasons stated, I now conclude that the better approach is to make

advance notice the rule and to engage in harmless error review when


                                    -22-
the rule is violated.       As I explain in the following section, the

error in this case was not harmless.

                                          II.

               As soon as the government proposed at Vega's sentencing

hearing that the court go beyond the Guidelines term of 57 to 71

months, his counsel protested that the defense should have been

advised    in    advance   "so    it     can    be   prepared     to   rebut   these

arguments."       The court disagreed that notice was required, heard

testimony from the victims, and explained that the crime warranted

a higher sentence because, inter alia, it involved a home invasion

with a shooting and was therefore "not a regular car jacking."

Counsel unsuccessfully argued in response that the presentence

report and the Guidelines recommendation took the particular facts

of the crime into account.             In announcing the sentence, the court

referred to defendant's "invad[ing] the privacy of a home in the

middle    of    the   night,"    the    victim's     plea   for   mercy,   and   the

discharge of the weapon.

               In his en banc brief, Vega offers several arguments that

could have been made at the sentencing hearing if counsel had

received advance notice that the court was contemplating a variance

based on the specific details of the offense:9




     9
       Although these arguments were not made to the panel, I deem
it appropriate to consider them on en banc review because we
specifically invited argument on the notice issue.

                                         -23-
          ! In response to the court's concern that the
          carjacking was unusual because it involved a
          home    invasion     that    caused   serious
          psychological injury to the victims, counsel
          could [have] challenged the veracity of the
          victims' claims of paralyzing fear, noting
          that [the victim] responded to the robbery by
          getting a gun, firing 13 shots at Mr. Vega-
          Santiago as he drove away on a public street,
          and then reloading and "go[ing] after the
          defendant" with his friend in an SUV. Counsel
          also could have argued that being robbed and
          fired upon by an armed gunman in any location
          causes serious emotional trauma, and that the
          marginal cost of enduring the crime at home,
          as   opposed   to   numerous   other  private
          locations, does not justify a variance from
          the guideline range.

          ! In response to the court's reliance on the
          shot fired during the robbery, counsel could
          have   pointed   out   that   the  mandatory
          consecutive sentence on Count Two already
          reflected a three-year increase because "the
          firearm [was] discharged" rather than merely
          "brandished."      Compare    18  U.S.C.   §
          924(c)(1)(A)(iii)     (ten-year    mandatory
          minimum), with 18 U.S.C. § 924(c)(1)(A)(ii)
          (seven-year mandatory minimum).

          ! In response to the court's reliance on the
          death threat and pleas for mercy, counsel
          could have explained the effect of the
          guideline   adjustment  for   death  threats,
          U.S.S.G. § 2B3.1(b)(2)(F), which was applied
          in this case, and could have reminded the
          court of "the need to avoid unwarranted
          sentence disparities among defendants with
          similar records who have been found guilty of
          similar conduct," 18 U.S.C. § 3553(a)(6).

Appellant's En Banc Brief at 21-22 (citations omitted).

          These arguments, which directly challenge the need for a

non-Guidelines sentence to meet the court's objectives, are neither

frivolous nor tangential to the court's reasoning.   We cannot know

                               -24-
their impact on the court if counsel had had the opportunity to

present them at the sentencing hearing.        The court expressed

concern that Vega's sentence "reflect how serious this offense

was."   Although defense counsel argued at the hearing that the

Guidelines sentencing range would accomplish that purpose, the

brief adds specific content, supported by authority, to the more

general argument that the Guidelines already accounted for the

facts that bothered the judge.        It is precisely this sort of

developed presentation by counsel, reinforced by legal and factual

references, that is denied a defendant who is not given advance

notice of the court's contemplated grounds for a non-Guidelines

sentence. Moreover, in its explanation for the sentence, the court

also referred to Vega's admission that he had "previous brushes

with the law which included violent crime allegations for which he

was not convicted" – a basis for deviating that the court had not

previously mentioned and for which, therefore, no notice was

provided.

            Where, as here, a defendant demonstrates that lack of

notice deprived him of "full adversary testing of the issues

relevant" to his sentence, Burns, 501 U.S. at 135, the error cannot

be deemed harmless and a remand for resentencing is necessary.

                               III.

            The majority predicts that "a mechanical notice rule"

would cause undesirable consequences.      In their view, it would


                               -25-
cause judges to "shy away from imposing non-guideline sentences

that the parties had not proposed in advance," or, alternatively,

"the judge would often have to employ a burdensome two-stage

regime."    Neither of these assertions has merit.

A. Multiple Proceedings

            The majority's concern that an advance notice rule would

often require a two-stage sentencing process reveals a fundamental

misunderstanding of the sentencing process.        My colleagues appear

to believe that a judge enters the courtroom for a sentencing

hearing with little sense of the sentence he or she intends to

impose or the factors that will affect that sentence.           They assume

that these factors will become apparent only during the course of

the hearing and that, if notice is required for a decision to

deviate    from   the   Guidelines,   many   variances   will    require   a

continuance and second hearing.

            That concern is at odds with reality. While the majority

may be correct that a judge will not make a final sentencing

decision until the end of the hearing, and "may well be revising

his views depending on what is presented and how counsel respond to

questions," the judge will arrive at that hearing after a review of

the presentence report and other relevant materials.             He or she

will already have a developed view of what the appropriate sentence

is, including its length.       To be sure, the judge's views may be

altered by what he or she hears at the hearing.          But a judge will


                                  -26-
almost always have considered in advance of the hearing whether an

upward or downward variance is appropriate.             To suggest less

forethought on the part of the sentencing judge is to suggest that

the judge enters the hearing unprepared.

            In other words, the ultimate decision to deviate from the

Guidelines – made at the conclusion of the sentencing hearing,

after adversary testing of the issues – should not be confused with

the earlier inclination – developed before the hearing – to focus

attention    on   particular   factors   that   might   warrant   such   a

deviation.    The notice required by Rule 32(h) is not that a court

will impose a variance, but only that it is considering factors

that may justify a variance.      Hence, it would pose no burden for

the court to provide notice in advance of the hearing that such a

variance is contemplated. In those few instances where the court's

inclination to impose a variance is based on a factor or factors

raised for the first time at the hearing, the principles of Burns

and Rule 32(h) require the court to provide sufficient notice to

enable both the defendant and the government to consider, research

and thoughtfully respond to the new ground.             In that case a

continuance of the sentencing hearing would be required.             Such

continuances would be a small price to pay for the fairness to all

parties of the advance notice requirement.




                                  -27-
B. The Role of the Guidelines

            The     notion     that   a    rule     of     advance     notice    would

inappropriately      incline     judges     toward       the   Guidelines   is   also

seriously flawed.        In multiple cases this term, the Supreme Court

has explicitly confirmed that the Guidelines remain a central part

of the sentencing process post-Booker.                   The Guidelines are "the

starting point and the initial benchmark" for sentencing decisions,

Gall v. United States, 128 S. Ct. 586, 596 (2007), entitled to

"respectful consideration," Kimbrough v. United States, 128 S. Ct.

558, 570 (2007), because "in the ordinary case, the [Sentencing]

Commission's recommendation of a sentencing range will 'reflect a

rough approximation of sentences that might achieve § 3553(a)'s

objectives,'" id. at 574 (quoting Rita, 127 S. Ct. at 2465).                      See

also United States v. Jiménez-Beltre, 440 F.3d 514, 518 (1st Cir.

2006 (en banc) (holding that the district court normally should

begin with a Guidelines calculation).

            The majority does not dispute the continuing centrality

of   the   Guidelines     to    the   sentencing         process.      Indeed,   they

acknowledge the Guidelines' "gravitational pull."                       They worry,

however, that an advance notice requirement will increase the

Guidelines'       pull   on    district     court    judges      and    hence    could

compromise the changes in the sentencing process effected by the

Supreme Court in Booker and its progeny.                       The suggestion that

district court judges would shy away from sua sponte variances as


                                          -28-
a matter of convenience is misguided.           It is inconceivable to me

that, having given the Guidelines due consideration and finding

them lacking, a judge would suppress the independent judgment

required by the Supreme Court simply to avoid providing the parties

with reasonable prehearing notice.          The modest burden of preparing

a brief notice or, in the rare case, continuing an already convened

sentencing hearing to a later date would not deter a judge from

imposing a variance.

           Rather    than    justifying      less     notice,       the   broader

sentencing    discretion    afforded   to    district      judges    post-Booker

requires that defendants be given the same advance warning of the

court's contemplated rationale for deviating from the Guidelines

that Burns required for sentencing departures.                  As the panel

opinion observed, the need for notice remains acute because of the

virtually limitless number of factors that may be used to support

a variance.     Although notice under Rule 32 is owed to both the

defendant and the government, the defendant's interest in preparing

the most persuasive argument available against an upward variance

is obviously of particular significance.            Defendants should not be

placed in the untenable position of "trying to anticipate and

negate every conceivable ground on which the district court might

choose to depart on its own initiative" or risk allowing "a

critical     sentencing    determination      [to]    go    untested      by   the

adversarial process."       Burns, 501 U.S. at 137.


                                   -29-
           The majority acknowledges that there are some cases

where, as a matter of fairness, notice must be provided.             But the

majority's proposed approach – providing notice or granting a

continuance when the court proposes to rely on a ground that would

"unfairly surprise competent and reasonably prepared counsel" – has

at least three serious flaws.          First, it gives no guidance at all

to district judges.       Without an anchor in either the Due Process

Clause or a bright-line rule, the majority's standard offers

sentencing judges no framework within which to evaluate the need

for notice.   Fairness, surprise and reasonable preparation are all

elusive concepts that individual judges will see differently.

           Second, the ambiguity of the standard leaves every non-

Guidelines    sentence    that   was    imposed   without   notice   open    to

challenge on appeal.      Surprise arguably exists any time the court

announces, for the first time at the sentencing hearing, its sua

sponte intention to deviate from the Guidelines, and surprise will

rarely be deemed "fair" by a defendant who has a right, under Rule

32,   to   comment   on    matters       affecting   the    length   of     his

incarceration. See Fed. R. Crim. P. 32(i)(1)(C). Debate over what

it means for counsel to be "reasonably prepared" for a sentencing

hearing surely will consume more judicial time than judges would

expend in giving prehearing notice.           Moreover, the standard is so

vague that appellate courts could rarely, if ever, conclude that

the sentencing court had erred.


                                       -30-
            Third, the majority suggests that most cases would not

involve   unfair        surprise      because   courts       typically     would    base

variances       on    "[g]arden    variety      considerations"       such    as    the

likelihood of recidivism or the seriousness of the crime.                     But the

commonality of such factors is not the issue.                   What matters is how

the court is processing all of the information relevant to those

factors and its inclination to take an exceptional view of them.

In the absence of advance notice, neither the defendant nor the

government has reason to anticipate that the usual factors may lead

to a non-Guidelines sentence, and advocating for a lower sentence

or higher sentence within a Guidelines range is not the same as

advocating against the court's inclination to sentence outside the

Guidelines.          That difference is reflected in the new arguments

asserted in Vega's en banc brief, which specifically emphasize why

the   court's        concerns   did    not   require     a    sentence     beyond    the

Guidelines.

            In sum, an easily administered bright-line rule requiring

advance notice in all cases would promote both actual fairness in

sentencing and "the perception of fair sentencing," Gall, 128 S.

Ct. at 597, without undue burdens on the courts.                  The Supreme Court

already has recognized the need for a reasonable notice requirement

in the context of departures.                In the post-Booker era, when the

court has broader discretion to go outside the Guidelines, notice

remains     a    critical       component     of   the       defendant's    right     to


                                         -31-
meaningfully comment on the appropriateness of a non-Guidelines

sentence.   I therefore respectfully dissent.




                               -32-
