UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-60751
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
VERSUS
MICHAEL FORD,
Defendant-Appellee.
Appeal from the United States District Court
For the Northern District of Mississippi
USDC No. 97-CR-45-ALL-B-D
May 18, 1998
Before Jolly, Benavides and Parker, Circuit Judges.
PER CURIAM:*
In this appeal, the Government contends that the district
court erred in granting defendant, Michael Ford, a downward
departure without prior notice. Under the Federal Rules of
Criminal Procedure, a sentencing court must provide defense counsel
and the Government an opportunity to comment upon matters relating
to the appropriate sentence. See Fed. R. Crim. P. 32(c)(1). In
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 97-60751
-2-
Burns v. United States, 501 U.S. 129, 138 (1991), the Supreme Court
established the notice requirement for Rule 32 in the context of
upward departure. We subsequently concluded that the notice
requirement of Rule 32 applies equally to downward departures. See
United States v. Pankhurst, 118 F.3d 345, 357 (5th Cir.), cert.
denied, __ U.S. __, 118 S.Ct. 630 (1997).
In this case, the PSR did not mention a possible downward
departure and no pre-hearing submission by the defendant identified
possible grounds for departure. As the Government was not given
adequate notice that a downward departure would be considered,
Ford’s sentence is VACATED and the matter REMANDED to the district
court for resentencing. This judgment neither expresses nor
intimates any opinion whether the basis for the departure is
appropriate. Accordingly, the sentence is
VACATED AND REMANDED FOR RESENTENCING.