David Hackett Souter

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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." ”

“ 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." ”