author: Justice Marshall Justice Souter,

text:
    BURNS v. UNITED STATES
    No. 89-7260.
    Argued December 3, 1990
    Decided June 13, 1991

      Steven H. Goldblatt argued the cause and filed briefs for petitioner.

      Stephen J. Marzen argued the cause for the United States. With him on the brief were Acting Solicitor General Roberts, Acting Assistant Attorney General Mueller, Deputy Solicitor General Bryson, and J. Douglas Wilson.

   Justice Marshall

delivered the opinion of the Court.

The question in this case is whether a district court may depart upward from the sentencing range established by the Sentencing Guidelines without first notifying the parties that it intends to depart. We hold that it may not.

I

Petitioner William Burns was employed by the United States Agency for International Development (AID) from 1967 until 1988. Between 1982 and 1988, petitioner used his position as a supervisor in the agency’s Financial Management Section to authorize payment of AID funds into a bank account controlled by him in the name of a fictitious person. During this period, 53 fraudulent payments totaling over $1.2 ■million were paid into the account.

Following the Government’s detection of this scheme, petitioner agreed to plead guilty to a three-count information charging him with theft of Government funds, 18 U. S. C. § 641, making false claims against the Government, 18 U. S. C. § 287, and attempted tax evasion, 26 U. S. C. § 7201. The plea agreement stated the parties’ expectation that petitioner would be sentenced within the Guidelines range corresponding to an offense level of 19 and a criminal history category of I.

The probation officer confirmed this expectation in his presentence report and found the applicable sentencing range to be 30 to 37 months. The report also concluded: “There are no factors that would warrant departure from the guideline sentence.” App. 21. Both petitioner and the Government reviewed the presentence report, and neither party filed any objections to it.

Nonetheless, at the conclusion of the sentencing hearing, the District Court announced that it was departing upward from the Guidelines sentencing range. The District Court set forth three reasons for the departure: (1) the extensive duration of petitioner’s criminal conduct; (2) the disruption to governmental functions caused by petitioner’s criminal conduct; and (3) petitioner’s use of his tax evasion offense to conceal his theft and false claims offenses. Based upon these considerations, the District Court sentenced petitioner to 60 months’ imprisonment.

On appeal, petitioner argued Rules of Criminal Procedure obliged the District Court to furnish advance notice of its intent to depart from the Guidelines. The Court of Appeals for the District of Columbia Circuit rejected petitioner’s contention and affirmed his sentence. The court observed that, although subdivision (a)(1) of Rule 32 requires the district court to afford the parties “an opportunity to comment upon . . . matters relating to the appropriate sentence” at the sentencing hearing, the Rule contains no express language requiring a district court to notify the parties of its intent to make sua sponte departures from the Guidelines. The court determined that it would be inappropriate to impose such a requirement on district courts in the absence of such express statutory language. See 282 U. S. App. D. C. 194, 199, 893 F. 2d 1343, 1348 (1990).

By contrast, several other Rule 32 does require a district court to provide notice of its intent sua sponte to depart upward from an applicable Guidelines sentencing range. We granted certiorari to resolve this conflict. 497 U. S. 1023 (1990). We now reverse.

b — ( l-H

. A

The Sentencing Reform Act of 1984 revolutionized the manner in which district courts sentence persons convicted of federal crimes. See generally Mistretta v. United States, 488 U. S. 361, 363-367 (1989). Before the Act, Congress was generally content to define broad sentencing ranges, leaving the imposition of sentences within those ranges to the discretion of individual judges, to be exercised on a case-by-case basis. Now, under the “guidelines” system initiated by the Act, district court judges determine sentences based on the various offense-related and offender-related factors identified by the Guidelines of the United States Sentencing Commission. See 18 U. S. C. §§ 8553(a)(4), (b). The purpose of this reform was to eliminate the “unwarranted disparities] and . . . uncertainty” associated with indeterminate sentencing. See, e. g., S. Rep. No. 98-225, p. 49 (1983). 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 . . . .” 18 U. S. C. § 3553(b).

Procedural reforms, too, were necessary to achieve Congress’ goal of assuring “certainty and fairness” in sentencing. See 28 U. S. C. § 991(b)(1)(B). As the Commission has explained:

“In pre-guidelines practice, factors relevant to sentencing were often determined in an informal fashion. The informality was to some extent explained by the fact that particular offense and offender characteristics rarely had a highly specific or required sentencing consequence. This situation will no longer exist under sentencing guidelines. The court’s resolution of disputed sentencing factors will usually have a measurable effect on the applicable punishment. More formality is therefore unavoidable if the sentencing process is to be accurate and fair. . . . When a reasonable dispute exists about any factor important to the sentencing determination, the court must ensure that the parties have an adequate opportunity to present relevant information.” U. S. Sentencing Comm’n, Guidelines Manual § 6A1.3, official commentary (1990) (emphasis added).

As amended by the Sentencing Reform Act, Federal Rule of Criminal Procedure 32 provides for focused, adversarial development of the factual and legal issues relevant to determining the appropriate Guidelines sentence. Rule 32 frames these issues by directing the probation officer to prepare a presentence report addressing all matters germane to the defendant’s sentence. See Fed. Rule Crim. Proc. 32(c)(2). At least 10 days before the sentencing, the report must be disclosed to the parties, see Rules 32(c)(3)(A), (C), whom the Guidelines contemplate will then be afforded an opportunity to file responses or objections with the district court, see Guidelines §6A1.2, and official commentary. Finally, Rule 32(a)(1) provides that “[a]t the sentencing hearing, the court [must] afford the counsel for the defendant and the attorney for the Government an opportunity to comment upon the probation officer’s determination and on other matters relating to the appropriate sentence.”

This case involves one aspect of the procedures surrounding Guidelines sentencing: whether the defendant is entitled to notice before the district court departs sua sponte from the Guidelines sentencing range. In the ordinary case, the presentence report or the Government’s own recommendation will notify the defendant that an upward departure will be at issue and of the facts that allegedly support such a departure. Here we deal with the extraordinary case in which the district court, on its own initiative and contrary to the expectations of both the defendant and the Government, decides that the factual and legal predicates for a departure are satisfied. The question before us is whether Congress, in enacting the Sentencing Reform Act, intended that the district court be free to make such a determination without notifying the parties. We believe that the answer to this question is clearly no.

B

As we have set forth, Rule 32 contemplates full adversary testing of the issues relevant to a Guidelines sentence and mandates that the parties be given “an opportunity to comment upon the probation officer’s determination and on other matters relating to the appropriate sentence.” Fed. Rule Crim. Proc. 32(a)(1). Obviously, whether a sua sponte departure from the Guidelines would be legally and factually warranted is a “matte[r] relating to the appropriate sentence.” 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. Because Rule 32 does not contain a like provision expressly obliging the district court to announce that it is contemplating to depart sua sponte, the Government concludes that Congress must have intended to deny the parties any right to notice in this setting.

We find the Government’s analysis unconvincing. As one court has aptly put it, “[n]ot every silence is pregnant.” State of Illinois Dept. of Public Aid v. Schweiker, 707 F. 2d 273, 277 (CA7 1983). In some cases, Congress intends silence to rule out a particular statutory application, while in others Congress’ silence signifies merely an expectation that nothing more need be said in order to effectuate the relevant legislative objective. An inference drawn from congressional silence certainly cannot be credited when it is contrary to all other textual and contextual evidence of congressional intent.

Here the textual and contextual evidence of legislative intent indicates that Congress did not intend district courts to depart from the Guidelines sua sponte without first affording notice to the parties. Such a reading is contrary to the text of Rule 32(a)(1) because it renders meaningless the parties’ express right “to comment upon . . . matters relating to the appropriate sentence. ” “Th[e] right to be heard has little reality or worth unless one is informed” that a decision is contemplated. Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306, 314 (1950). This is especially true when the decision in question is a sua sponte departure under the Guidelines. Because the Guidelines place essentially no limit on the number of potential factors that may warrant a departure, see, e. g., Guidelines ch. 1, pt. A4(b), no one is in a position to guess when or on what grounds a district court might depart, much less to “comment” on such a possibility in a coherent way. The Government’s construction of congressional “silence” would thus render what Congress has expressly said absurd. Cf. Green v. Bock Laundry Machine Co., 490 U. S. 504, 527 (1989) (Scalia, J., concurring in judgment) (when “confronted . . . with a statute which, if interpreted literally, produces an absurd, and perhaps unconstitutional result[,] [o]ur task is to give some alternative meaning [to the statute] . . . that avoids this consequence”).

The inference that the Government asks us to draw from silence also is inconsistent with Rule 32’s purpose of promoting focused, adversarial resolution of the legal and factual issues relevant to fixing Guidelines sentences. At best, under the Government’s rendering of Rule 32, parties will address possible sua sponte departures 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. 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.

Lastly, the meaning that the Government attaches to Congress’ silence in Rule 32 is completely opposite to the meaning that this Court has attached to silence in a variety of analogous settings. Notwithstanding the absence of express statutory language, this Court has readily construed statutes that authorize deprivations of liberty or property to require that the Government give affected individuals both notice and a meaningful opportunity to be heard. See American Power & Light Co. v. SEC, 329 U. S. 90, 107-108 (1946) (statute permitting Securities and Exchange Commission to order corporate dissolution); The Japanese Immigrant Case, 189 U. S. 86, 99-101 (1903) (statute permitting exclusion of aliens seeking to enter United States). The Court has likewise inferred other statutory protections essential to assuring procedural fairness. See Kent v. United States, 383 U. S. 541, 557 (1966) (right to full, adversary-style representation in juvenile transfer proceedings); Greene v. McElroy, 360 U. S. 474, 495-508 (1959) (right to confront adverse witnesses and evidence in security-clearance revocation proceedings); Wong Yang Sung v. McGrath, 339 U. S. 33, 48-51 (1950) (right to formal hearing in deportation proceedings).

In this case, were we to read tice, we would then have to confront the serious question whether notice in this setting is mandated by the Due Process Clause. Because Rule 32 does not clearly state that a district court sua sponte may depart upward from an applicable Guidelines sentencing range without providing notice to the defendant we decline to impute such an intention to Congress. See, e. g., Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council, 485 U. S. 568, 575 (1988) (“[W]here an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress”).

Ill

We hold that before a district court can depart upward on a ground not identified as a ground for upward departure either in the presentence report or in a prehearing submission by the Government, Rule 32 requires that the district court give the parties reasonable notice that it is contemplating such a ruling. This notice must specifically identify the ground on which the district court is contemplating an upward departure.

Petitioner did not receive the notice to which he was entitled under Rule 32. Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

So ordered.

Justice Souter,

with whom Justice White and Justice O’Connor join, and with whom The Chief Justice joins as to Part I, dissenting.

The Court today imposes a procedural requirement neither contemplated by Congress nor warranted by the language of any statute or rule. The Court’s inference of a notice requirement from congressional silence rests on a failure to appreciate the extraordinary detail with which the Sentencing Reform Act of 1984 (in amending Federal Rule of Criminal Procedure 32 and in its other provisions) expressly provides the procedures to be followed in imposing sentence in a federal criminal case. The absence from this carefully calibrated scheme of any provision for notice of the sort required by the Court makes it clear that, in the words the Court quotes, ante, at 136, the congressional silence was pregnant, and that Congress intended to require no such notice. The Court’s interpretation of Rule 32 accomplishes “‘not a construction of a [rule], but, in effect, an enlargement of it by the court.’” West Virginia University Hospitals, Inc. v. Casey, 499 U. S. 83, 101 (1991), quoting Iselin v. United States, 270 U. S. 245, 251 (1926) (Brandeis, J.). Because the Court’s creation cannot be justified as a reasonable construction of the Rule, I respectfully dissent.

I — I

The express procedural requirements of the Sentencing Reform Act are numerous. Unless the court makes findings that would justify dispensing with a presentence investigation, the probation officer must make a presentence report, Fed. Rule Crim. Proc. 32(c)(1), that includes, inter alia, “information about the history and characteristics of the defendant”; “the classification of the' offense and of the defendant under the categories established by the Sentencing Commission . . . that the probation officer believes to be applicable to the defendant’s case”; “the sentencing range suggested for such a category of offense committed by such a category of defendant as set forth in the guidelines issued by the Sentencing Commission”; and “an explanation by the probation officer of any factors that may indicate that a sentence of a different kind or of a different length from one within the applicable guideline would be more appropriate under all the circumstances.” Fed. Rules Crim. Proc. 32(c)(2)(A) and (B).

The same Rule provides several guarantees of a defendant’s right to address the court. At the sentencing hearing, the district court “shall afford the counsel for the defendant and the attorney for the Government an opportunity to comment upon the probation officer’s determination and on other matters relating to the appropriate sentence.” Rule 32(a) (1). Before imposing sentence the court must “determine that the defendant and his counsel have had the opportunity to read and discuss” any presentence report and must afford the defendant and his counsel an opportunity to speak to the court and present mitigating information. Rule 32(a)(1)(A). Finally, the defendant and his counsel must be given the “opportunity to comment on the report and, in the discretion of the court, to introduce testimony or other information relating to any alleged factual inaccuracy contained in it.” Rule 32(c)(3)(A).

The report itself, “not including any final recommendation as to sentence,” must in most respects be disclosed to the defendant, his counsel, and the attorney for the Government at least 10 days before sentencing, unless the defendant waives his right to that notice. Rules 32(c)(3)(A) and (C); 18 U. S. C. § 3552(d). 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.” Rule 32(a)(1).

The district court must sentence within the range set by the Guidelines, unless it finds “an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.” 18 U. S. C. § 3553(b). A judge who departs from the Guidelines must “state in open court . . . the specific reason for the imposition of a sentence different from that described,” § 3553(c)(2), and a sentence outside the applicable range may be appealed, §§ 3742(a)(3), (b)(3).

For all this attentive concern with procedure, neither Rule 32 nor any other provision of the Sentencing Reform Act expressly requires advance notice of a district court’s intention to depart sua sponte from the Guidelines range. The Court contends that such a notice requirement is implicit in the provision of Rule 32(a)(1) mandating that the parties be given “an opportunity to comment upon the probation officer’s determination and on other matters relating to the appropriate sentence.” In the Court’s view, the right to comment on a matter relating to sentencing, such as the possibility of upward departure, can be exercised effectively only when that “matter” is identified explicitly; accordingly, the argument runs, in providing an opportunity to comment Congress must also have intended to require that notice be given of any matter upon which the parties might desire to comment. See ante, at 136-137.

The difficulty with this reasoning is that the terms of the Act reflect a decided congressional disinclination to rely on presuppositions and silent intentions in place of explicit notice requirements. The Act expressly requires that before sentencing the court must give notice to the defense of the probation officer’s determination of the sentencing classifications and Guidelines range applicable to the case. The Act also expressly entitles the defense to a copy of the pre-sentence report not less than 10 days before the hearing (subject to qualifications not relevant here), and it expressly directs the court to ensure that the defendant and the defendant’s counsel have had the opportunity to read and discuss the report before sentence is imposed.

What is remarkable about these provisions is that all of them (save for the guarantee of 10-day notice) would be superfluous on the Court’s reasoning. It is fair to say, for example, that the right to comment not merely on the appropriate classifications and Guidelines range, but on the probation officer’s determinations of what they are, implies a right to notice of those determinations. And yet Congress did not leave the notice requirement to the force of implication but expressly provided for it, both in cases with a presentence report and in cases without one. It would be only slightly less compelling to argue that a right to comment on other matters affecting sentence implies a right to read, discuss, and address the court with respect to the probation officer’s report. And yet, again, the drafters of Rule 32 provided for this result, not by relying on implication but by specific mandates to disclose.

Given this congressional reliance on explicit provisions for disclosure even when notice requirements might reasonably have been inferred from rights to comment, there is great significance in the congressional silence about notice when a sentencing judge intends to depart from a Guidelines range. The only fair inference from this differential treatment is that when Congress meant to provide notice and disclosure, it was careful to be explicit, as against which its silence on the predeparture notice at issue here bespeaks no intent that notice be given. See, e. g., General Motors Corp. v. United States, 496 U. S. 530, 541 (1990).

The Court seeks to justify its rewriting of Rule 32 by asserting that interpreting the Rule as written would be “absurd,” because such an interpretation would “rende[r] meaningless” the right to comment on “other matters relating to the appropriate sentence” conferred by the Rule. Ante, at 136-137. Even if we were authorized to embellish Congress’ handiwork in the interest of enduing it with additional meaning, however, the Court’s argument would fail on its own terms, for the Court’s specific notice requirement is not necessary to save the right to comment from meaninglessness.

First, the phrase “other matters ate sentence” includes a wide variety of matters beyond the district court’s possible inclination to depart sua sponte, such as the existence and significance of facts indicating the sentence that the court should choose within the applicable Guidelines range. Lack of specific notice as to just one “other matter” (the court’s option to depart upward) does not render the entire phrase meaningless.

Second, even with regard to the “matter” of possible upward departure, the absence of specific notice hardly renders the opportunity to comment meaningless. The Court’s contrary conclusion rests on its erroneous treatment of the absence of specific notice of the factors on which the court may rely as equivalent to a complete absence of notice that the court may depart. Because the Sentencing Reform Act provides that a court may depart from the applicable Guideline range if it finds “an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described,” 18 U. S. C. § 3553(b), the statute itself puts the parties on notice that departure is always a possibility, and the parties can use their opportunity to comment to address that possibility. Indeed, the record in this case demonstrates that, even without specific notice, counsel may choose to gear part of the argument to the possibility of departure. At the sentencing hearing, despite the absence of any indication that the judge was contemplating departure, petitioner’s counsel closed his remarks to the court by asking

“that the period of incarceration be limited enough that he has a family to return to, that he has a future that he can work towards rebuilding, and we think the guidelines are the appropriate range, Your Honor. We ask Your Honor to consider a sentence within the guidelines.” App. 45 (emphasis added).

Although specific notice of the sort required by the Court might be useful to the parties in helping them focus on specific potential grounds for departure, its absence hardly makes the opportunity to comment on the possibility of departure so meaningless as to justify judicial legislation. Although “we construe statutes, where possible, so as to avoid rendering superfluous any parts thereof,” Astoria Federal Savings & Loan Assn. v. Solimino, ante, at 112, it is not our practice to supplement their provisions simply because we think that some statutory provision might usefully do further duty than Congress has assigned to it.

The Court also seeks to rely on the rule that statutes should be construed so as to avoid raising serious constitutional problems. Ante, at 138. This canon of construction, however, only applies when the constitutional difficulty can be avoided by a “‘reasonable construction,’” Edward J. De-Bartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council, 485 U. S. 568, 575 (1988) (emphasis added), of the statute. The problem with the Court’s notice requirement is that in no way does it result from a “construction” of anything in Rule 32. In light of the emphatic congressional silence about prior notice of sua sponte departures, what the Court does to Rule 32 comes closer to reconstruction than construction.

In any event, the canon applies only when a contrary construction would “raise serious constitutional problems.” Ibid. Because, as I will now proceed to discuss, Rule 32 as written raises no such problems, there is no warrant for the Court’s conclusion.

II

I begin with the proposition that “the sentencing process, as well as the trial itself, must satisfy the requirements of the Due Process Clause.” Gardner v. Florida, 430 U. S. 349, 358 (1977) (plurality opinion). At the threshold, of course, there must be an interest subject to due process protection, such as the expectancy that we found to have been created by the Nebraska statute at issue in Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U. S. 1 (1979). The Act there in question directed that the parole board, when considering the possible release of an eligible prisoner, “‘shall order his release unless it is of the opinion that his release should be deferred because’” one of four statutory criteria was met. Id., at 11; see also Cleveland Bd. of Ed. v. Loudermill, 470 U. S. 532, 538-541 (1985); Wolff v. McDonnell, 418 U. S. 539, 558 (1974). The Sentencing Reform Act creates a similar presumption by providing that “[t]he court shall impose a sentence of the kind, and within the range, [set forth in the Guidelines,] unless the court 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.” 18 U. S. C. § 3553(b) (emphasis added). I therefore conclude that a defendant enjoys an expectation subject to due process protection that he will receive a sentence within the presumptively applicable range in the absence of grounds defined by the Act as justifying departure.

The question is “what process is due.” Morrissey v. Brewer, 408 U. S. 471, 481 (1972). “‘“[D]ue process,” unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances,’” Cafeteria & Restaurant Workers v. McElroy, 367 U. S. 886, 895 (1961), but is “flexible[, calling] for such procedural protections as the particular situation demands.” Morrissey, supra, at 481. The methodology for assessing those demands was the subject of Mathews v. Eldridge, 424 U. S. 319 (1976), where we prescribed a three-part enquiry to consider

“[f]irst, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Id., at 335.

Although Mathews itself concerned the adequacy of administrative factfinding procedures, we have not confined the Mathews approach to administrative contexts or to situations where simple factfinding is the sole determinant of governmental action. In Parham v. J. R., 442 U. S. 584 (1979), for example, we addressed the constitutionality of Georgia’s procedures for involuntarily admitting a child for treatment in a state mental hospital and explicitly relied on the Mathews structure. Id., at 599-600. We called it “a general approach for testing challenged state procedures under a due process claim,” id., at 599, even as we recognized that “[w]hile facts are plainly necessary for a proper resolution of [the relevant medical] questions, they are only a first step in the process,” id., at 609. In Greenholtz, we relied on Mathews while realizing that the parole board’s decision was “necessarily subjective in part and predictive in part,” that it entailed the exercise of “very broad discretion,” 442 U. S., at 13, and that none of the statutory bases for denying parole was a mere issue of historical fact, see id., at 11. In Ingraham v. Wright, 430 U. S. 651 (1977), holding that due process did not require notice and a hearing before the infliction of corporal punishment, we applied Mathews even though the relevant “risk of error” was not merely that facts might be mistaken, but that apart from any factual mistake corporal punishment might be inflicted “unnecessarily or excessively.” 430 U. S., at 678. 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 Guidelines range of 30 to 37 months. A defendant’s interest in receiving a sentence not unlawfully higher than the upper limit of the Guidelines 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. To avoid the possibility of such a postponement, a sentencing judge will need to schedule time well in advance of the sentencing hearing to identify and consider possible grounds for departure. Since the time spent on this advance review will not simply be recovered by subtracting it from the length of the subsequent sentencing hearing, the result will almost certainly be more time spent on a process already lengthened considerably by the new sentencing scheme. See Report of the Federal Courts Study Committee 137 (1990) (90 percent of judges in survey report that Guidelines have made sentencing more time consuming; 30 percent report an increase of at least 50 percent in time spent on sentencing). Thus, the Government has an important interest in avoiding the additional drain on judicial resources that the Court’s notice requirement will impose on already overburdened district judges. Cf., e. g., Advisory Committee’s Notes on Fed. Rule Crim. Proc. 32, 18 U. S. C. App., p. 798 (declining to require sentencing judge to notify defendant of possible uses of presentence report, because “[t]he Committee believes that this additional burden should not be placed upon the trial judge”).

With each party having substantial and contrary interests, great significance attaches to the second element in the Mathews analysis. I think it clear that both the risk of error under the procedures already required and the probable value of a further notice requirement are sufficiently low that the current sentencing scheme passes constitutional muster without the notice requirement imposed by the Court today.

The first of the possible sources of error a sentencing decision are the conclusions of fact thought by the sentencing judge to justify any upward departure. These factual propositions are, however, generally presented in the presentence report, and are subject to challenge and evidentiary resolution under Rule 32(c)(3)(A). 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 Guidelines range, even when the disquieting fact might not drive the judge to the point of considering departure from the range itself. No procedure beyond that of the existing law is therefore necessary to provide a defendant with a reason as well as an effective opportunity to minimize the risk of an upward departure resting on a mistake of fact relevant to sentencing.

A second source of possible sentencing error inheres in the interpretation and application of congressional sentencing authorization. Of course, under any codified sentencing scheme there will always be some risk, albeit normally a low one, that a judge may stray beyond the outer limit of the sentence provided for the offense in question, in which event rehearing or appeal will allow for correction. There is, however, a potential for legal error peculiar to proceedings under the Sentencing Reform Act, in the provision that an aggravating or mitigating fact may justify departure from the otherwise applicable Guidelines range if that factual circumstance is not adequately reflected in the range chosen by the Commission. 18 U. S. C. § 3553(b). Because such an issue of adequate reflection goes essentially to the Commission’s intentions, it has uniformly, and I believe correctly, been treated as an issue of law subject to customary appellate review. Whether this appellate opportunity suffices for due process depends on whether the effectiveness of any appeal would be enhanced, or the probable need for appeal obviated, by requiring prior notice of the sentencing judge’s intentions or concerns at the trial stage. I believe the answer is no.

If the issue of adequate reflection were one that called for evidentiary litigation by questioning witnesses about the Commissioners’ thought processes, or by discovering or introducing documentary evidence that would otherwise be unavailable on appeal, then notice in time to litigate at the trial level would be indispensable, virtually as a matter of definition. But a district court’s determination that an aggravating circumstance is “of a kind, or ... a degree, not adequately taken into consideration by the Sentencing Commission,” ibid., is not subject to that sort of evidentiary proof. The legal issue of adequate reflection will turn not on an evidentiary record that might be developed at a sentencing hearing, but on documented administrative history and commentary that will be available to any defendant at the appellate stage.

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. The opportunity for such a post-trial appeal therefore suffices to minimize the chance of any erroneous deprivation of liberty that might otherwise flow from the sort of legal error in question.

Finally, a decision to depart from the Guidelines includes a determination that some sentence more onerous than what the Guidelines would permit is not simply permissible, but is in fact appropriate for the particular offense by the particular defendant. See 18 U. S. C. § 3553(b). In assessing the due process implications of this element of the sentencing decision, it is worth pausing to identify the nature of the error that could occur when a judge makes the ultimate decision about a sentence’s duration.

The concept of error in a sentence’s factual predicate is fairly obvious, and legal error in assessing the conclusiveness of a Guidelines range, in the sense in which I have just explained it, is equally straightforward. Error in fixing the duration of a sentence outside the Guidelines range, however, must be understood in terms of the discretionary nature of the judicial function in making that decision.

Such a judgment about what the defendant deserves is discretionary in the sense that its underlying premises of fact, law, and value cannot be so quantified, or stated with such precision, as to require a sentencing court to reach one conclusion and one only. There is, rather, a spectrum of sentences that are arguably appropriate or reasonable, cf. Wasman v. United States, 468 U. S. 559, 563 (1984) (under pre-Guidelines law, sentencing judge has wide discretion within range permitted by statute); United States v. Tucker, 404 U. S. 443, 446-447 (1972) (same), and error in discretionary sentencing must therefore be identified as a failure to impose a sentence that actually falls within this zone of reasonableness.

The Act provides two procedures to minimize the risk that a defendant will be forced to serve a sentence outside the Guidelines range that is unreasonably long. The first, of course, is the opportunity at the sentencing hearing itself to address the court, apprised by the Guidelines that departure is always possible. As I have noted earlier, even without express notice, counsel may choose to gear part of his argument to the possibility that departure is on the judge’s mind. Petitioner’s counsel understood that possibility when he contended that “the guidelines are the appropriate range” and asked the court “to consider a sentence within the guidelines.” App. 45. For that matter, even if counsel chooses not to argue against departure specifically, pleas for leniency within the Guidelines range often duplicate the arguments that can be made against upward departure. A defendant thus has both opportunity and motive to make appropriate arguments before the trial judge renders any final decision, even without predeparture notice. Cf. Loudermill, 470 U. S., at 543 (even where facts are clear, appropriate action may not be).

The second procedure available to minimize the risk of serving an unreasonable sentence is appellate review of the sentence itself. “If the court of appeals determines that the sentence ... is outside the applicable guideline range and is unreasonable . . . [and] too high ... it shall set aside the sentence and remand the case for further sentencing proceedings with such instructions as the court considers appropriate.” 18 U. S. C. § 3742(f)(2)(A). While this right to review is only as good as the record that a defendant can present to an appellate court, prehearing notice of a sentencing judge’s intentions will not likely enhance the record for the defendant’s benefit. A defendant already has the opportunity and impetus to challenge the factual predicate on which a sentence must stand or fall as reasonable or not. And since the comprehensive factual predicate is supplemented by the sentencing judge’s statement of reasons for departing from the Guidelines, see § 3553(c), it is difficult to imagine how the record could be more conducive to a comprehensive review of a defendant’s claim that his sentence outside the Guidelines range is unreasonably high.

It is, indeed, just the substantiality of this appeal right that indicates why predeparture notice lies beyond the scope of what due process demands. For if there can be said to be any need for the sort of exact predeparture notice that the Court requires, it does not arise from the risk that a defendant will be forced to serve a sentence that is erroneous by virtue of an unreasonable exercise of discretion. Rather, any incremental advantage that a defendant might obtain from advance knowledge of the judge’s thinking will most likely consist of allowing the defendant to be more precise in trying to influence a judge’s exercise of discretion within the range of reasonableness that the law allows. The defendant’s further advantage, if any, will not be a reduced risk of serving an unreasonable sentence, but an improved opportunity to tailor an exact argument about where the sentence should be set within the reasonable zone. Although the reality of any such advantage that might flow from knowing the judge’s mind may be debatable, a defendant’s desire for it is nothing new. Litigants have always desired greater opportunities to influence courts in the exercise of discretion within permissible limits. And yet it comes as no surprise that in the days before the Sentencing Reform Act due process was not thought to require the notice and arguably enhanced opportunity that the Court today requires. See Greenholtz, 442 U. S., at 16. It comes as no surprise simply because the reason that due process imposed no such notice requirement then is the same that it imposes none today: such notice is not in practice necessary to reduce the risk of serving erroneous sentences. Cf. Dixon v. Love, 431 U. S. 105, 114 (1977).

In sum, existing process provides what is due without resort to the Court’s requirement. This conclusion echoes our treatment in Greenholtz of an inmate’s liberty interest in early parole, an interest comparable to that of petitioner in a shorter sentence. The Court of Appeals in Greenholtz had required the parole board to provide inmates eligible for parole with “written notice reasonably in advance of the hearing together with a list of factors that might be considered.” 442 U. S., at 14, n. 6. We decided that due process required no such notice, and held that it would suffice for the board to “infor[m] the inmate in advance of the month during which the hearing will be held . . . [and] on the day of the hearing . . . pos[t] notice of the exact time,” even though the board’s notice would not include a list of factors on which the board might rely. Ibid. The notice now required by the Court closely resembles the “list of factors” we rejected as constitutionally unnecessary in Greenholtz.

I do not suggest that the specific notice required Court cannot be justified on grounds of policy. There is, however, nothing in the Sentencing Reform Act or the Due Process Clause that provides a basis for today’s holding.

I respectfully dissent.

       See, e. g., United States v. Palta, 880 F. 2d 636, 640 (CA2 1989); United States v. Nuno-Para, 877 F. 2d 1409, 1415 (CA9 1989); United States v. Otero, 868 F. 2d 1412, 1415 (CA5 1989).

       Pursuant to Rule 32(c)(2), the presentenee report is to contain (a) information about the history and characteristics of the defendant, including his prior criminal record; (b) the classification of the offense and the defendant under the Sentencing Guidelines, possible sentencing ranges, and any factors that might warrant departure from the Guidelines; (c) any pertinent policy statements issued by the Sentencing Commission; (d) the impact of the defendant’s offense upon any victims; (e) information relating to possible sentences not requiring incarceration, unless the court orders otherwise; and (f) any other information requested by the court.

       District courts have generally implemented this directive through local rules that allow the parties to file objections to the presentence report in advance of the sentencing hearing and that require the probation officer to respond to those objections. See, e. g., U. S. Dist. Ct. for the MD Ala. Rules 33(a)—(c); U. S. Dist. Ct. for the D DC Rules 311(a)-(c); U. S. Dist. Ct. for the ND Fla. Gen. Rules 23(b)—(d); U. S. Dist. Ct. for the ND Ill. Crim. Rules 2.06(g)—(i); U. S. Dist. Ct. for the ED-MD-WD La. Rules 16M(a)-(c); U. S. Dist. Ct. for the D. Minn. Rules 83.10(c)-(d); U. S. Dist. Ct. for the EDNC Rules 50.03-50.05; U. S. Dist. Ct. for the ND Ohio Crim. Rules 10.05(2)(b)-(d); U. S. Dist. Ct. for the WD Okla. Rules 42(E)(1)—(3); U. S. Dist. Ct. for the ED Tenn. Rules 27.3-27.5; U. S. Dist. Ct. for the ND Tex. Rules 10.9(b)—(e); U. S. Dist. Ct. for the WD Va. Rules 14(1)—(3); U. S. Dist. Ct. for the D. Wyo. Rules 219(c)—(f).

       It is equally appropriate to frame the issue as whether the parties are entitled to notice before the district court departs upward or downward from the Guidelines range. Under Rule 32, it is clear that the defendant and the Government enjoy equal procedural entitlements.

       If the Government makes the recommendation in writing, Federal Rule of Criminal Procedure 49(a) requires that it be served upon the defendant.

       Because the question of the timing of the reasonable notice required by Rule 32 is not before us, we express no opinion on that issue. Rather, we leave it to the lower courts, which, of course, remain free to adopt appropriate procedures by local rule. See Guidelines § 6A1.2, and official commentary (“Courts should adopt procedures to provide for . . . the narrowing and resolution, where feasible, of issues in dispute in advance of the sentencing hearing”). See also n. 3, supm (listing local rules established to govern resolution of objections to findings in presentenee report).

       Rule 32(a)(1) provides:
      “Sentence shall be imposed without unnecessary delay, but the court may, when there is a factor important to the sentencing determination that is not then capable of being resolved, postpone the imposition of sentence for a reasonable time until the factor is capable of being resolved. Prior 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. At the sentencing hearing, the court shall afford the counsel for the defendant and the attorney for the Government an opportunity to comment upon the probation officer’s determination and on other matters relating to the appropriate sentence. Before imposing sentence, the court shall also—
      “(A) determine that the defendant and defendant’s counsel have had the opportunity to read and discuss the presentence investigation report made available pursuant to subdivision (c)(3)(A) or summary thereof made available pursuant to subdivision (c)(3)(B);
      “(B) afford counsel for the defendant an opportunity to speak on behalf of the defendant; and
      “(C) address the defendant personally and determine if the defendant wishes to make a statement and to present any information in mitigation of the sentence.
      “The attorney for the Government shall have an equivalent opportunity to speak to the court. Upon a motion that is jointly filed by the defendant and by the attorney for the Government, the court may hear in camera such a statement by the defendant, counsel for the defendant, or the attorney for the Government.”

       Although the Court stops short of explicitly relying on § 6A1.3 of the Sentencing Guidelines as providing textual support for a notice requirement, its lengthy quotation from the commentary to that provision, unte, at 133, bears mention. Section 6A1.3 addresses nothing more than disputes about factual matters like the presence or absence of particular offense and offender characteristics. Accordingly, the Introductory Commentary to Part A of Chapter Six of the Guidelines (of which § 6A 1.3 is a part) states that “[t]his Part. . . sets forth the procedures for establishing the facts upon which the sentence will be based.” (Emphasis added.) Because § 6A1.3 thus deals only with the resolution of fact-based disputes, it simply does not bear on the legal determination whether a given fact, once established, amounts to a circumstance so aggravating as to justify departure.

       The Court’s statement that we have “readily construed statutes that authorize deprivations of liberty or property to require that the Government give affected individuals both notice and a meaningful opportunity to be heard,” ante, at 137-138 (emphasis in original) (citing cases), is inapposite. The cases cited by the Court involved statutes that made no provision whatsoever for notice or hearing. By contrast, the Sentencing Reform A.ct itself, as explained earlier, gives notice that departure is always a possibility; and the express provisions of Rule 32 give the defendant the opportunity to be heard at his sentencing hearing.

       Although conceivably a district court might give predeparture notice at the sentencing hearing itself, without postponing sentencing pending a further hearing on the question of departure, such a practice would be of little use in reducing the risk of error in sentencing determinations. A contemporaneous warning of upward departure might sharpen defense counsel’s rhetoric, but it would not be of much help in enabling him to present evidence on disputed facts he had not previously meant to contest, or in preparing him to address the legal issue of the adequacy of the Guidelines in reflecting a particular aggravating circumstance. Contemporaneous notice would, then, probably turn out to be more a formality than a substantive benefit.
      While such contemporaneous notice (and any additional argument offered as a result) would be unlikely to add substantially to the length of a sentencing hearing, and, therefore, implicates only a modest Government interest in efficiency, even that modest interest is sufficient to balance the de minimis benefit of such notice to the defense. In view of the fact that, as I explain below, existing procedures provide substantial protection against any risk of error, the minimal benefit of contemporaneous notice cannot be said to be a requirement of due process.

       I do not address whether due process would require notice prior to a decision by a sentencing judge to depart upward on the basis of facts not contained in the presentence report.

       Every Circuit except the Fifth has explicitly held, like the District of Columbia Circuit in this case, see 282 U. S. App. D. C. 194, 196, 893 F. 2d 1343, 1345 (1990), that “plenary” or “de novo” review is appropriate. See United States v. Diaz-Villafane, 874 F. 2d 43, 49 (CA1), cert. denied, 493 U. S. 862 (1989); United States v. Lara, 905 F. 2d 599, 602 (CA2 1990); United States v. Ryan, 866 F. 2d 604, 610 (CA3 1989); United States v. Chester, 919 F. 2d 896, 900 (CA4 1990); United States v. Rodriguez, 882 F. 2d 1059, 1067 (CA6 1989), cert. denied, 493 U. S. 1084 (1990); United States v. Williams, 901 F. 2d 1394, 1396 (CA7 1990), cert. pending, No. 90-5849; United States v. Whitehorse, 909 F. 2d 316, 318 (CA8 1990); United States v. Singleton, 917 F. 2d 411, 412 (CA9 1990); United States v. Dean, 908 F. 2d 1491, 1494 (CA10 1990); United States v. Russell, 917 F. 2d 512, 515 (CA11 1990), cert. denied, 499 U. S. 953 (1991). The Fifth Circuit has held that departure will be affirmed when the reasons for departure are “acceptable.” See, e. g., United States v. Murillo, 902 F. 2d 1169, 1172 (1990).

       There is one class of defendants for whom the right to appeal might not substitute for the ability to argue the issue to the district court: those for whom the Guidelines recommend either no incarceration or a period of incarceration shorter than the time necessary for the disposition of an appeal, but who receive a greater sentence in the exercise of the district coui't’s authority to depart. For such a defendant, a successful appeal could come too late to undo completely the damage done by an erroneous departure decision. 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.” Walters v. National Assn, of Radiation Survivors, 473 U. S. 305, 330 (1985). There is no contention that this class of defendants is sufficiently large to affect the due process calculus in this case.


source: Caselaw Access Project

author: Justice Blackmun Justice Stevens,

license: Public Domain

text:
    TOIBB v. RADLOFF
    No. 90-368.
    Argued April 22, 1991
    Decided June 13, 1991

      Peter M. Lieb argued the cause for petitioner. With him on the briefs were Timothy B. Dyk and Jonathan W. Belsky.

      Stephen J. Marzen argued the cause for the United States, as respondent under this Court’s Rule 12.4, in support of petitioner. With him on the brief were Solicitor General Starr, Assistant Attorney General Gerson, Deputy Solicitor

      General Roberts, William Ranter, Bruce G. Forrest, and Martha Davis.

      James Hamilton, by invitation of the Court, 498 U. S. 1065, argued the cause and filed a brief as amicus curiae in support of the judgment below.
   Justice Blackmun

delivered the opinion of the Court.

In this case we must decide whether an individual debtor not engaged in business is eligible to reorganize under Chapter 11 of the Bankruptcy Code, 11 U. S. C. § 1101 et seq.

I

From March 1983 until April 1985, petitioner Sheldon Baruch Toibb, a former staff attorney with the Federal Energy Regulatory Commission, was employed as a consultant by Independence Electric Corporation (IEC), a company he and two others organized to produce and market electric power. Petitioner owns 24 percent of the company’s shares. After IEC terminated his employment, petitioner was unable to find work as a consultant in the energy field; he has been largely supported by his family and friends since that time.

On November 18, 1986, petitioner filed in the United States Bankruptcy Court for the Eastern District of Missouri a voluntary petition for relief under Chapter 7 of the Code, 11 U. S. C. § 701 et seq. The Schedule of Assets and Liabilities accompanying petitioner’s filing disclosed no secured debts, a disputed federal tax priority claim of $11,000, and unsecured debts of $170,605. Petitioner listed as nonexempt assets his IEC shares and a possible claim against his former business associates. He stated that the market value of each of these assets was unknown.

On August 6, 1987, the Chapter 7 trustee appointed to administer petitioner’s estate notified the creditors that the Board of Directors of IEC had offered to purchase petitioner’s IEC shares for $25,000. When petitioner became aware that this stock had such value, he decided to avoid its liquidation by moving to convert his Chapter 7 case to one under the reorganization provisions of Chapter 11.

The Bankruptcy Court granted petitioner’s conversion motion, App. 21, and on February 1, 1988, petitioner filed a plan of reorganization. Id., at 70. Under the plan, petitioner proposed to pay his unsecured creditors $25,000 less administrative expenses and priority tax claims, a proposal that would result in a payment of approximately 11 cents on the dollar. He further proposed to pay the unsecured creditors, for a period of six years, 50 percent of any dividends from IEC or of any proceeds from the sale of the IEC stock, up to full payment of the debts.

On March 8, 1988, the Bankruptcy Court on its own motion ordered petitioner to show cause why his petition should not be dismissed because petitioner was not engaged in business and, therefore, did not qualify as a Chapter 11 debtor. Id., at 121. At the ensuing hearing, petitioner unsuccessfully attempted to demonstrate that he had a business to reorganize. Petitioner also argued that Chapter 11 should be available to an individual debtor not engaged in an ongoing business. On August 1, the Bankruptcy Court ruled that, under the authority of Wamsganz v. Boatmen’s Bank of De Soto, 804 F. 2d 503 (CA8 1986), petitioner failed to qualify for relief under Chapter 11. App. to Pet. for Cert. A-17 and A-19.

The United States District Court for the Eastern District of Missouri, also relying on Wamsganz, upheld the Bankruptcy Court’s dismissal of petitioner’s Chapter 11 case. App. to Pet. for Cert. A-8 and A-9. The United States Court of Appeals for the Eighth Circuit affirmed, holding that the Bankruptcy Court had the authority to dismiss the proceeding sua sponte, and that the Circuit’s earlier Wams-ganz decision was controlling. In re Toibb, 902 F. 2d 14 (1990). Because the Court of Appeals’ ruling that an individual nonbusiness debtor may not reorganize under Chapter 11 clearly conflicted with the holding of the Court of Appeals for the Eleventh Circuit in In re Moog, 774 F. 2d 1073 (1985), we granted certiorari to resolve the conflict. 498 U. S. 1060 (1991).

II

A

In our view, the plain language of the Bankruptcy Code disposes of the question before us. Section 109, 11 U. S. C. § 109, defines who may be a debtor under the various chapters of the Code. Section 109(d) provides: “Only a person that may be a debtor under chapter 7 of this title, except a stockbroker or a commodity broker, and a railroad may be a debtor under chapter 11 of this title.” Section 109(b) states: “A person may be a debtor under chapter 7 of this title only if such person is not — (1) a railroad; (2) a domestic insurance company, bank, . . . ; or (3) a foreign insurance company, bank, . . . engaged in such business in the United States.” The Code defines “person” as used in Title 11 to “includ[e] [an] individual.” § 101(35). Under the express terms of the Code, therefore, petitioner is “a person who may be a debtor under chapter 7” and satisfies the statutory requirements for a Chapter 11 debtor.

The Code contains no ongoing business requirement for reorganization under Chapter 11, and we are loath to infer the exclusion of certain classes of debtors from the protections of Chapter 11, because Congress took care in § 109 to specify who qualifies — and who does not qualify — as a debtor under the various chapters of the Code. Section 109(b) expressly excludes from the coverage of Chapter 7 railroads and various financial and insurance institutions. Only municipalities are eligible for the protection of Chapter 9. § 109(c). Most significantly, § 109(d) makes stockbrokers and commodities brokers ineligible for Chapter 11 relief, but otherwise leaves that Chapter available to any other entity eligible for the protection of Chapter 7. Congress knew how to restrict recourse to the avenues of bankruptcy relief; it did not place Chapter 11 reorganization beyond the reach of a nonbusiness individual debtor.

B

The amicus curiae in support of the Court of Appeals’ judgment acknowledges that Chapter 11 does not expressly exclude an individual nonbusiness debtor from its reach. He echoes the reasoning of those courts that have engrafted an ongoing-business requirement onto the plain language of § 109(d) and argues that the statute’s legislative history and structure make clear that Chapter 11 was intended for business debtors alone. See, e. g., Wamsganz v. Boatmen’s Bank of De Soto, 804 F. 2d, at 505 (“The legislative history of the Bankruptcy Code, taken as a whole, shows that Congress meant for chapter 11 to be available to businesses and persons engaged in business, and not to consumer debtors”). We find these arguments unpersuasive for several reasons.

First, this Court has repeated with some frequency: “Where, as here-, the resolution of a question of federal law turns on a statute and the intention of Congress, we look first to the statutory language and then to the legislative history if the statutory language is unclear.” Blum v. Stenson, 465 U. S. 886, 896 (1984). The language of § 109 is not unclear. Thus, although a court appropriately may refer to a statute’s legislative history to resolve statutory ambiguity, there is no need to do so here.

Second, even were we to comments urged in support of a congressional intent to exclude a nonbusiness debtor from Chapter 11, the scant history on this precise issue does not suggest a “clearly expressed legislative intenft] . . . contrary ...” to the plain language of § 109(d). See Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U. S. 102, 108 (1980). The ami-cus does point to the following statement in a House Report:

“Some consumer debtors are unable to avail themselves of the relief provided under chapter 13. For these debtors, straight bankruptcy is the only remedy that will enable them to get out from under the debilitating effects of too much debt.” H. R. Rep. No. 95-595, p. 125 (1977).

Petitioner responds with the following excerpt from a later Senate Report:

“Chapter 11, Reorganization, is primarily designed businesses, although individuals are eligible for relief under the chapter. The procedures of chapter 11, however, are sufficiently complex that they will be used only in a business case and not in the consumer context.” S. Rep. No. 95-989, p. 3 (1978).

These apparently conflicting views tend to negate the suggestion that the Congress enacting the current Code operated with a clear intent to deny Chapter 11 relief to an individual nonbusiness debtor.

Finally, we are not persuaded by the contention that Chapter 11 is unavailable to a debtor without an ongoing business because many of the Chapter’s provisions do not apply to a nonbusiness debtor. There is no doubt that Congress intended that a business debtor be among those who might use Chapter 11. Code provisions like the ones authorizing the appointment of an equity security holders’ committee, § 1102, and the appointment of a trustee “for cause, including fraud, dishonesty, incompetence, or gross mismanagement of the affairs of the debtor by current management ...,”§ 1104(a)(1), certainly are designed to aid in the rehabilitation of a business. It does not follow, however, that a debtor whose affairs do not warrant recourse to these provisions is ineligible for Chapter 11 relief. Instead, these provisions — like the references to debtor businesses in the Chapter’s legislative history — reflect an understandable expectation that Chapter 11 would be used primarily by debtors with ongoing businesses; they do not constitute an additional prerequisite for Chapter 11 eligibility beyond those established in § 109(d).

HH 1 — 1

Although the foregoing analysis is dispositive of the question presented, we deal briefly with amicus’ contention that policy considerations underlying the Code support inferring a congressional intent to preclude a nonbusiness debtor from reorganizing under Chapter 11. First, it is said that bringing a consumer debtor within the scope of Chapter 11 does not serve Congress’ purpose of permitting business debtors to reorganize and restructure their debts in order to revive the debtors’ businesses and thereby preserve jobs and protect investors. This argument assumes that Congress had a single purpose in enacting Chapter 11. Petitioner suggests, however, and we agree, that Chapter 11 also embodies the general Code policy of maximizing the value of the bankruptcy estate. See Commodity Futures Trading Comm’n v. Weintraub, 471 U. S. 343, 351-354 (1985). Under certain circumstances a consumer debtor’s estate will be worth more if reorganized under Chapter 11 than if liquidated under Chapter 7. Allowing such a debtor to proceed under Chapter 11 serves the congressional purpose of deriving as much value as possible from the debtor’s estate.

Second, amicus notes that a consumer proceed under Chapter 11 would permit the debtor to shield both disposable income and nonexempt personal property. He argues that the legislative history of Chapter 11 does not reflect an intent to offer a consumer debtor more expansive protection than he would find under Chapter 13, which does not protect disposable income, or Chapter 7, which does not protect nonexempt personal assets. As an initial matter, it makes no difference whether the legislative history affirmatively reflects such an intent, because the plain language of the statute allows a consumer debtor to proceed under Chapter 11. Moreover, differences in the requirements and protections of each chapter reflect Congress’ appreciation that various approaches are necessary to address effectively the disparate situations of debtors seeking protection under the Code.

Amicus does not contend that allowing a consumer debtor to reorganize under Chapter 11 will leave the debtor’s creditors in a worse position than if the debtor were required to liquidate. See Tr. of Oral Arg. 29-31. Nor could he. Section 1129(a)(7) provides that a reorganization plan may not be confirmed unless all the debtor’s creditors accept the plan or will receive not less than they would receive under a Chapter 7 liquidation. Because creditors cannot be expected to approve a plan in which they would receive less than they would from an immediate liquidation of the debtor’s assets, it follows that a Chapter 11 reorganization plan usually will be confirmed only when creditors will receive at least as much as if the debtor were to file under Chapter 7. Absent some showing of harm to the creditors of a nonbusiness debtor allowed to reorganize under Chapter 11, we see nothing in the allocation of “burdens” and “benefits” of Chapter 11 that warrants an inference that Congress intended to exclude a consumer debtor from its coverage. See Herbert, Consumer Chapter 11 Proceedings: Abuse or Alternative?, 91 Com. L. J. 234, 245-248 (1986).

Amicus also warns that allowing consumer debtors to proceed under Chapter 11 will flood the bankruptcy courts with plans of reorganization that ultimately will prove unworkable. We think this fear is unfounded for two reasons. First, the greater expense and complexity of filing under Chapter 11 likely will dissuade most consumer debtors from seeking relief under this Chapter. See S. Rep. No. 95-989, at 3; see also Herbert, supra, at 242-243. Second, the Code gives bankruptcy courts substantial discretion to dismiss a Chapter 11 case in which the debtor files an untenable plan of reorganization. See §§ 1112(b) and 1129(a).

Finally, amicus asserts that extending Chapter 11 to consumer debtors creates the risk that these debtors will be forced into Chapter 11 by their creditors under § 303(a), a result contrary to the intent reflected in Congress’ decision to prevent involuntary bankruptcy proceedings under Chapter 13.' In particular, he suggests that it would be unwise to force a debtor into a Chapter 11 reorganization, because an involuntary debtor would be unlikely to cooperate in the plan of reorganization — a point that Congress noted in refusing to allow involuntary Chapter 13 proceedings. See H. R. Rep. No. 95-595, at 120.

We find these concerns overstated in light of the Code’s provisions for dealing with recalcitrant Chapter 11 debtors. If an involuntary Chapter 11 debtor fails to cooperate, this likely will provide the requisite “cause” for the bankruptcy court to convert the Chapter 11 case to one under Chapter 7. See § 1112(b). In any event, the argument overlooks Congress’ primary concern about a debtor’s being forced into bankruptcy under Chapter 13: that such a debtor, whose future wages are not exempt from the bankruptcy estate, § 1322(a)(1), would be compelled to toil for the benefit of creditors in violation of the Thirteenth Amendment’s involuntary servitude prohibition. See H. R. Rep. No. 95-595, at 120. Because there is no comparable provision in Chapter 11 requiring a debtor to pay future wages to a creditor, Congress’ concern about imposing involuntary servitude on a Chapter 13 debtor is not relevant to a Chapter 11 reorganization.

IV

The plain language of the Bankruptcy vidual debtors not engaged in business to file for relief under Chapter 11. Although the structure and legislative history of Chapter 11 indicate that this Chapter was intended primarily for the use of business debtors, the Code contains no “ongoing business” requirement for Chapter 11 reorganization, and we find no basis for imposing one. Accordingly, the judgment of the Court of Appeals is reversed.

It is so ordered.

Justice Stevens,

dissenting.

The Court’s reading of the ported by the omission of any prohibition against the use of Chapter 11 by consumer debtors and by the excerpt from the introduction to the Senate Report, quoted ante, at 162. Nevertheless, I am persuaded that the Court’s reading is incorrect. Two chapters of the Bankruptcy Code — Chapter 7, entitled “Liquidation,” 11 U. S. C. § 701 et seq., and Chapter 13, entitled “Adjustment of Debts of an Individual With Regular Income,” § 1301 et seq. —unquestionably and unambiguously authorize relief for individual consumer debtors. Chapter 11, entitled “Reorganization,” § 1101 et seq., was primarily designed to provide relief for corporate debtors but also unquestionably authorizes relief for individual proprietors of business enterprises. When the statute is read as a whole, however, it seems quite clear that Congress did not intend to authorize a “reorganization” of the affairs of an individual consumer debtor.

Section 109(d) places a limit on the class of persons who may be a debtor under Chapter 11, but it does not state that all members of that class are eligible for Chapter 11 relief. It states that “only a person that may be a debtor under Chapter 7 . . . may be a debtor under Chapter 11. . . .” (Emphasis added.) It does not, however, state that every person entitled to relief under Chapter 7 is also entitled to relief under Chapter 11. In my judgment, the word “only” introduces sufficient ambiguity to justify a careful examination of other provisions of the Act, as well as the legislative history.

This examination convinces me that consumer debtors may not avail themselves of Chapter 11. The repeated references to the debtor’s “business,” “the operation of the debtor’s business,” and the “current or former management of the debtor” make it abundantly clear that the principal focus of the chapter is upon business reorganizations. This conclusion is confirmed by the discussion of Chapter 11 in the Senate Report, which describes the provision as a “chapter for business reorganization” and repeatedly refers to a “business” as the subject of Chapter 11 relief. See also 124 Cong. Rec. 34007 (1978) (Chapter 11 is a “consolidated approach to business rehabilitation”) (statement of Sen. DeConcini).

The House Report, however, is more significant because emphasizes the relationship between different chapters of the Code. The Report unambiguously states that a Chapter 7 liquidation is “the only remedy” for “consumer debtors [who] are unable to avail themselves of the relief provided under chapter 13.” H. R. Rep. No. 95-595, p. 125 (1977). See also 124 Cong. Rec., at 32392, 32405 (Chapter 11 is “a consolidated approach to business rehabilitation” and a “new commercial reorganization chapter”) (statement of Rep. Edwards). The accuracy of the statement in the House Report is confirmed by a comparison of the text of Chapter 11 with the text of Chapter 13.

Above, I noted the striking difference between the chapter titles — “Reorganization” for Chapter 11 as opposed to “Adjustment of Debts of an Individual With Regular Income” for Chapter 13. Also significant is the conspicuous omission from Chapter 11 of both an important limit and an important protection included in Chapter 13. Chapter 13 relief is only available to individuals whose unsecured debts amount to less than $100,000 and whose secured debts are less than $350,000. See 11 U. S. C. § 109(e). Chapter 11 contains no comparable limit. Congress would have accomplished little in imposing this limit on the adjustment of individual consumer debt through Chapter 13 if Congress at the same time allowed the individual to avoid the limitation by filing under Chapter 11.

More important, the Code expressly provides that involuntary proceedings can only be instituted under Chapter 7 and Chapter 11. See 11 U. S. C. § 303(a). A creditor therefore may not force an individual consumer debtor into an involuntary Chapter 13 proceeding. Under the Court’s reading of the Act, however, a creditor could institute an involuntary proceeding under Chapter 11 against any individual with regular income. It seems highly unlikely that Congress intended to subject individual consumer debtors, such as pensioners, to involuntary Chapter 11 proceedings while at the same time prohibiting involuntary Chapter 13 proceedings against the same class of debtors.

For these reasons, notwithstanding the excerpt from the Senate Report on which the Court relies, I would, in accordance with the clear statement in the House Report, read the statute as a whole to limit Chapter 11 relief to business debtors. I therefore respectfully dissent.

       Because petitioner’s unsecured debts exceeded $100,000 and he had no regular income, he was ineligible to proceed under Chapter 13 of the Code, 11 U. S. C. § 1301 et seq. See § 109(e).

       Petitioner does not seek further review of the question whether he is engaged in an ongoing business.

       The Eighth Circuit also agreed with what it regarded as the supporting precedent of In re Little Creek Development Co., 779 F. 2d 1068 (CA5 1986), and In re Winshall Settlor’s Trust, 758 F. 2d 1136 (CA6 1985).

       The named respondent, Stuart J. Radloff, was dismissed as Chapter 7 trustee when the Bankruptcy Court converted petitioner’s case to one under Chapter 11. Mr. Radloff did not participate in the proceedings before the Court of Appeals and refrained from responding to Mr, Toibb’s petition for certiorari filed with this Court. We therefore specifically requested the United States Trustee, see 28 U. S. C. §581(a)(13), to respond. In doing so, the United States Trustee indicated his agreement with petitioner’s position and suggested that, if this Court decided to review the case, it might wish to appoint counsel to defend the Eighth Circuit’s judgment. We then invited James Hamilton, Esq., of Washington, D. C., a member of the Bar of this Court, to serve as amicus curiae in support of the judgment of the Court of Appeals. 498 U. S. 1065 (1991). Mr. Hamilton accepted this appointment and has well fulfilled this assigned responsibility.

       Section 109(d) provides:

        “Only a person that may be a debtor under chapter 7 of this title, except a stockholder or a commodity broker, and a railroad may be a debtor under Chapter 11 of this title.” 11 U. S. C. § 109(d) (emphasis added).

       See, e. g., §§ 1101(2)(B), 1108.

       See, e. g., §§ 1103(c)(2), 1105, 1106(a)(3).

       See § 1104(b).

       The Senate Report contains the following explanation of Chapter 11 reorganizations:
      “Chapter 11 deals with the reorganization of a financially distressed business enterprise, providing for its rehabilitation by adjustment of its debt obligations and equity interests. It should be distinguished from the bankruptcy liquidation under chapter 7 or the adjustment of the debts of an individual with regular income under chapter 13.
      “Chapter 11 replaces chapters X, XI and XII of the Bankruptcy Act, Chapter 11 also includes special provisions for railroads in view of the impact of regulatory laws on railroad debtors and replaces section 77 of the Bankruptcy Act. A single chapter for all business reorganizations will simplify the law by eliminating unnecessary differences in detail that are inevitable under separately administered statutes.
      “Business reorganizations have been governed principally by chapters X and XI, both of which have been adopted by the Congress as part of the bankruptcy reforms in 1938. These chapters were not intended to be alternate paths of reorganization; they were to be mutually exclusive. Chapter X was meant for the reorganization of public companies and chapter XI for the rehabilitation of small and privately owned businesses.
      “That schematic design was well conceived, but flawed somewhat by the failure to include a definition of a ‘public company.’ As a result, considerable litigation developed, mostly on the initiative of the Securities and Exchange Commission, over whether a case belonged in chapter X or chapter XI. This issue came to the Supreme Court in three cases, the last one in SEC v. American Trailer Rentals, Inc., 379 U. S. 594 (1965), but the Court did not enunciate a hard-and-fast rule for all cases. Although it announced some guidelines, management and creditors of large public companies have continued to resort to chapter XI.
      “The single chapter for business reorganization, which the bill provides, will eliminate unprofitable litigation over the preliminary issue as to which of the two chapters apply. . . .
      “Reorganization, in its fundamental aspects, involves the thankless task of determining who should share the losses incurred by an unsuccessful business and how the values of the estate should be apportioned among creditors and stockholders.” S. Rep. No. 95-989, pp. 9-10 (1978).

       Although the Court believes that permitting consumer debtors to avail themselves of Chapter 11 will not adversely affect their creditors, ante, at 164-165, I am not so sure. It takes time and money to determine whether a plan will provide creditors with benefits equal to those available through liquidation and still more time and money to find out whether such a predictive decision turns out to be correct or incorrect. The “complex” Chapter 11 process, see S. Rep. No. 95-989, p. 3 (1978), will almost certainly consume more time and resources than the simpler Chapter 7 procedures.