CA2: Can courts sua sponte consider an above-guideline sentence? And can guidelines/standing orders contradict the Fed. R. Crim. P?

US v. Cole, 06-0226.  What was the judge thinking? Of course not. .  The second holds that “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.”

The judge also claimed that the defendant had waived his right to object to the PSR by not seeking “administrative resolution” of it, and therefore wouldn’t consider an objection to a enchantment that was reserved in the plea agreement, and therefore, he the judge wouldn’t entertain it.  Apparently, the Judge said that counsel violated the “local procedural guidelines rule.”  This isn’t a rule.  This document of “best practices.”  “Cole and the Government agree paragraph three does not have the force of a local rule; it was not adopted by a majority of judges following a period of appropriate public notice and comment.”  The government claims it is a “standing order.”  Looking at Fed. R. Crim. P. 57(b), the court concludes that it is a “standing order” and therefore this exhaustion requirement would need to be a “matter of detail” and must be consistent with federal law.  The court concludes that this “standing order” (if it can be called that)  is inconsistent with Fed. R. Crim. P. 32(f) and (i), which not only imposes additional burdens on the parties, but does so in a way that differs across forums.