F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
June 16, 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
v. No. 04-3234
(D. Kansas)
JOSE SANTOS MONROY, (D.Ct. No. 04-CR-10006-JTM)
Defendant - Appellee.
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
*
This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
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.
1
The statute allows for imprisonment for no more than twenty years. See 18
U.S.C. § 1326(b)(2).
2
The PIR and the eventual sentence applied the November 2003 edition of the
United States Sentencing Guidelines. See United States Sentencing Commission,
Guidelines Manual (Nov. 2003).
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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
3
In his reply brief, Monroy contends, inter alia, that his sentence violates the
decision in Blakely v. Washington, -- U.S.--, 124 S.Ct. 2531 (2004), in which the Supreme
Court applied its decision in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (“Other
than the fact of a prior conviction, any fact that increases the penalty for a crime beyond
the prescribed statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt.”), to invalidate, under the Sixth Amendment, application of
Washington’s sentencing guidelines. In Booker, the Court subsequently extended its
ruling in Blakely to invalidate the federal sentencing guidelines insofar as they were
mandatory. 125 S.Ct. at 745. Given our decision to vacate Monroy’s sentence and
remand for resentencing on an alternate basis, we need not decide his Blakely claim or the
propriety of raising it for the first time in his reply brief.
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first time on appeal. At first blush, this would suggest we should review for plain
error. See F ED . R. C RIM . 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 F ED . R. C RIM . 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:
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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.
F ED . R. C RIM . 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 departures 4 or Rule 32(h). Booker “makes the Guidelines
effectively advisory. It requires a sentencing court to consider Guidelines ranges,
4
Booker is clear that the offending aspect of § 3553(b)(1) is not its reference to
departures but rather its language mandating application of the guidelines. “[T]he
existence of § 3553(b)(1) is a necessary condition of the constitutional violation. That is
to say, without this provision – namely the provision that makes the relevant sentencing
rules mandatory and imposes binding requirements on all sentencing judges – the statute
falls outside the scope of Apprendi's requirement.” Booker, 125 S.Ct. at 764 (internal
quotation marks, ellipsis and alteration omitted).
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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
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