United States v. Anati, Docket No. 05-3800-cr (2d Cir. July 20, 2006)
Pursuant to Rule 32 of the Federal Rules of Criminal Procedure, a court is required to give advance notice of grounds for a sua sponte upward or downward departure so that a defendant or his counsel has an opportunity to "comment" on same. In Anati the Second Circuit determined that a court is similarly required to provide a defendant with notice of intent to use the discretionary authority provided by Booker to impose, sua sponte, a "non-Guidelines sentence adverse to the defendant" because of the "significant similarity between an intent to depart and an intent to impose a non-Guidelines sentence."
(In doing so, the Second Circuit joins the Fourth and Ninth Circuits in finding that Rule 32 applies to non-Guidelines sentences as well as departures. The Third, Seventh and Eighth Circuits have held the opposite. And the First and Eleventh Circuits have held only that the failure to provide notice does not constitute plain error.)