UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellant,

v.

JOSE SANTOS MONROY,

Defendant - Appellee.

No. 04-3234

(D. Kansas)

(D.Ct. No. 04-CR-10006- JTM )

ORDER AND JUDGMENT*

Before KELLY, O'BRIEN, and TYMKOVICH , Circuit Judges.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

On March 10, 2004, Jose Santos Monroy pled guilty to illegal re-entry after deportation subsequent to a conviction for an aggravated felony in violation of 8 U.S.C. § 1326(a) and (b)(2). On June 1, 2004, the district court departed downward from the sentencing guidelines and sentenced Monroy to forty-six months imprisonment.1 The Government appeals. Exercising jurisdiction under 18 U.S.C. § 3742(b) and 28 U.S.C. § 1291, we VACATE the sentence and REMAND for resentencing.

Background

In aid of sentencing, the district court ordered preparation of a Presentence Investigation Report (PIR). The PIR calculated a total offense level of 21 and a criminal history category of V, resulting in a guideline range of 70 to 87 months.2 Monroy moved for downward departure, see 18 U.S.C. § 3553(b)(1) (allowing departures under strict conditions but since excised by United States v. Booker, -- U.S. -- , 125 S.Ct. 738, 756 (2005)), on two grounds: 1) the criminal history category assigned to him in the PIR substantially over-represented the seriousness of his criminal history or the likelihood he would commit other crimes, see USSG §4A1.3(b)(1) and 2) cultural assimilation. See USSG §5K2.0(a). At sentencing, the court downward departed in criminal history category from V to IV on the ground category V over-represented the seriousness of Monroy's criminal history. The court also downward departed two offense levels, to 19, on the ground of exceptional rehabilitation -- a ground not identified in the PIR, specifically advanced by Monroy, noticed to either party or argued at sentencing. The consequent guideline range was 46 to 57 months. The court sentenced Monroy at the low end of the range.

Discussion

The Government appeals each of the downward departures ordered by the district court.3 Inter alia, the Government challenges the court's failure to give reasonable notice it was contemplating a downward departure for exceptional rehabilitation, a departure awarded only at the conclusion of the sentencing hearing.

We first consider the appropriate standard of review to apply to the Government's claim. The Government did not object to the court's award of a downward departure for exceptional rehabilitation and raises its objection for the first time on appeal. At first blush, this would suggest we should review for plain error. See Fed. R. Crim. P. 52(b). However, where a "complete lack of notice made it impossible for the parties to anticipate the nature of the [downward departure] and short-circuited the significance of any opportunity to comment[,]" we will not consider the party who objects for the first time on appeal to have waived objection at the trial level. United States v. Bartsma, 198 F.3d 1191, 1198 (10th Cir. 1999). We therefore review for harmless error. See Fed. R. Crim. P. 52(a).

In Burns v. United States (a case in which the district court departed upward without prior notice to the parties of its contemplation of same), the Court held:

[B]efore 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.

501 U.S. 129, 138 (1991). Significantly, the Court noted "[i]t 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." Id. at 135 n.4. With the Burns decision in mind, Rule 32 was amended in 2002:

Notice of Possible Departure from Sentencing Guidelines. Before the court may depart from the applicable sentencing range on a ground not identified for departure either in the presentence report or in a party's prehearing submission, the court must give the parties reasonable notice that it is contemplating such a departure. The notice must specify any ground on which the court is contemplating a departure.

Fed. R. Crim. P. 32(h). See also Advisory Committee Notes to Rule 32, 2002 Amendments (explaining Burns provenance); Bartsma, 198 F.3d at 1199-1200 (Burns violated where the court, without prior notice to parties that it contemplated doing so, imposed sex offender registration requirement as condition of supervised release). Based on the foregoing, we conclude the district court erred in departing downward for exceptional rehabilitation without giving prior notice to the parties it contemplated such a departure, and the error was not harmless. This being so, we need not reach other sentencing issues presented for review.

We add there is nothing in the remedial portion of Booker which impugns the continued vitality of departures4 or Rule 32(h). Booker "makes the Guidelines effectively advisory. It requires a sentencing court to consider Guidelines ranges, but it permits the court to tailor the sentence in light of other statutory concerns as well." 125 S.Ct. at 757 (citations omitted). Tailoring a sentence will no doubt occasionally involve, as it has in the past, departure from a standard guideline range. Such departures, as with those under the now-excised § 3553(b)(1), are subject to Rule 32(h). Post-Booker, we will review a sentence under a standard of reasonableness. Id. at 765. It is to this standard that departures are now tied, not the strictures of the now-excised § 3553(b)(1).

Conclusion

Accordingly, we VACATE the sentence and REMAND for resentencing consistent with this opinion and Booker.

Entered by the Court:

Terrence L. O'Brien

United States Circuit Judge