Was the panel's decision proper in light of Day v. McDonough?

QUESTION(S) PRESENTED Detling appealed the district court's denial of his Speedy Trial Act motion to dismiss, a three-judge panel rejected the Government's argument but then raised its own argument sua sponte without giving the Detling notice or the opportunity to be heard on the argument prior to issuing its decision. Was this proper in light of this Court's holding in Day v. McDonough, that "a court must accord the parties fair notice and an opportunity to present their positions" before disposing of a case . on a ground not raised in their filmgs? . If this Court finds that the Panel acted improperly then should it grant certiorari based on Supreme Court Rule 10(a) which says that certiorari is appropriate when — "a United States court of appeals. . . has so far departed from the accepted and usual course of judicial proceedings. . . as to call for the Court's supervisory power."? If this Court grants certiorari then was the panel's decision so clearly wrong that summary reversal is appropriate or is it enough to remand the case back to the panel for further consideration in light of this Court's holding in Day v. McDonough?