Notable Second Circuit ruling on notice and guideline procedures

Thanks to this post at AL&P, I see that I missed a notable ruling on notice and other related issues of guideline sentencing procedure coming from the Second Circuit last week.  Here is one of various passages (with some cites omitted) from US v. Cole, No. 06-0226 (2d Cir. Aug. 9, 2007) (available here), a case which highlights that at least some process is still due a defendant at sentencing:

In this case, the district court sua sponte imposed an above-Guidelines sentence, departing 12 months above the highest end of the Guidelines range that it found applicable.  As Cole correctly notes, a district court must provide reasonable prehearing notice of its intent to consider a sentence above the Guidelines range.  Of course, the “right to be heard has little . . . worth unless one is informed that a decision is contemplated.”  Burns v. United States, 501 U.S. 129, 136 (1991). The notice given during the course of the sentencing hearing and put into effect less than two hours later was insufficient. Failure to give such reasonable notice constitutes plain error.  Consequently, we remand.  On remand, the district court must provide the defendant notice so as to avert “unfair surprise” as well as facilitate “adversarial testing of factual and legal considerations relevant” to the contemplated departure.

UPDATE:  interestingly, the Second Circuit today decided another notice case in US v. Altman, No. 06-4276 (2d Cir. Aug. 16, 2007) (available here), but came out the other way when supervised release guidelines were involved.  Here's the first paragraph of the Altman opinion:

This case asks us to decide, in effect, whether United States v. Booker, 543 U.S. 220 (2005), and our jurisprudence since then has made it necessary for district courts to give notice before sua sponte imposing a sentence outside the range recommended by the applicable United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”) policy statements for violation of conditions of supervised release. We hold that such notice and an opportunity to challenge the basis for the sentence outside the applicable advisory range need not be given. Accordingly, we affirm the sentence imposed.