Thurgood Marshall, Burns v. United States — Opinion of the Court
“ The only circumstance in which the district court can disregard the mechanical dictates of the Guidelines is when it 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. ”
Thurgood Marshall, Burns v. United States — Opinion of the Court
“ In our view, it makes no sense to impute to Congress an intent that a defendant have the right to comment on the appropriateness of a sua sponte departure but not the right to be notified that the court is contemplating such a ruling.In arguing that Rule 32 does not contemplate notice in such a situation, the Government derives decisive meaning from congressional silence. Rule 32 (c) (3) (A) , the Government observes, expressly obliges the district court to give the parties' 10 days' notice of the contents of the presentence report. ”
Thurgood Marshall, Burns v. United States — Opinion of the Court
“ At worst, and more likely, the parties will not even try to anticipate such a development; where neither the presentence report nor the attorney for the Government has suggested a ground for upward departure, defense counsel might be reluctant to suggest such a possibility to the district court, even for the purpose of rebutting it. In every case in which the parties fail to anticipate an unannounced and uninvited departure by the district court, a critical sentencing determination will go untested by the adversarial process contemplated by Rule 32 and the Guidelines. ”
