F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
April 17, 2006
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 05-5029
ARMANDO CALZADA-
MARAVILLAS,
Defendant-Appellant.
Appeal From The United States District Court
For The Northern District of Oklahoma
(D.C. No. 04-CR-106-001-HDC )
Robert A. Ridenour, Assistant Federal Public Defender (Paul D. Brunton, Federal
Public Defender, and Barry L. Derryberry, with him on the brief), Tulsa,
Oklahoma, for Defendant-Appellant.
Loretta F. Radford, Assistant United States Attorney (David E. O’Meilia, United
States Attorney, with her on the brief), Tulsa, Oklahoma, for Plaintiff-Appellee.
Before BRISCOE, McKAY, and McCONNELL , Circuit Judges.
BRISCOE , Circuit Judge.
Defendant Armando Calzada-Maravillas pled guilty to reentry of a deported
alien after former conviction of an aggravated felony in violation of 8 U.S.C. §
1326(a) and (b)(1) and (2). At sentencing, the district court sua sponte departed
upward, and sentenced Calzada-Maravillas to 58 months’ imprisonment. Calzada-
Maravillas appeals his sentence, claiming that the district court erred in departing
upward without providing notice to him in violation of Rule 32(h) of the Federal
Rules of Criminal Procedure and United States v. Burns, 501 U.S. 129 (1991). In
response, the United States argues that the lack of notice was harmless error.
We exercise jurisdiction pursuant to 28 U.S.C. § 1291. We remand to the
district court with directions to vacate defendant’s sentence and resentence.
I.
On September 27, 2004, Calzada-Maravillas pled guilty to reentry of a
deported alien after former conviction of an aggravated felony. The presentence
report (“PSR”) concluded that Calzada-Maravillas had a total offense level of 13,
a criminal history category of VI, and a guideline range of 33 to 41 months. In
calculating the total offense level, the PSR proposed the addition of eight levels
under U.S.S.G. § 2L1.2(b)(1)(C) because defendant was previously convicted of
two aggravated felony offenses. Although the PSR listed nine adult criminal
convictions, the PSR stated that “[t]he probation officer ha[d] discovered no
factor, of a kind, or to a degree, not adequately taken into consideration in the
formulation of the guideline sentencing range, that would warrant a departure
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from the prescribed guideline calculations.” PSR ¶ 52, App. Vol. II, at 13.
Neither party objected to the PSR.
The district court sentenced Calzada-Maravillas on February 23, 2005,
which was after the Supreme Court decided United States v. Booker, 543 U.S.
220 (2005). While the PSR recommended a guideline range of 33 to 41 months’
imprisonment, the district court sua sponte departed upward and sentenced
Calzada-Maravillas to 58 months’ imprisonment. The district court stated that
“an upward departure is of course warranted” when the criminal history category
of VI “does not adequately reflect the seriousness of defendant’s conduct.” App.
Vol. III, at 6. The district court listed three “aggravating factors that could
warrant that upward departure”: (1) “three prior sentences not used in the
calculation of the criminal history category, two of which were controlled
substance violations”; (2) the “recidivist nature of the defendant’s criminal past”;
and (3) the likelihood that he will reenter the United States “because he has done
so at least eight times in the past.” App. Vol. III, at 6.
The district court explained why it departed from the guideline range:
A review of offense level enhancement for a period of criminal
convictions assists in reaching a departure level. Section
2L1.2(b)(1)(C) provides for an eight-level increase for a prior
conviction for aggravated felony, and Section 2L1.2(b)(1)(D)
provides a four-level increase for a conviction for any other felony,
and these enhancements are triggered by just one prior conviction. In
this case the defendant has a total of seven prior felony convictions,
at least two of which are aggravated felonies.
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Based on the defendant’s criminal history and pattern of repetitive
conduct, a four-level increase of the offense level appears to be
appropriate, just and reasonable. This would provide an offense
level of 17 combined with a criminal history of VI, and provides a
guideline for a departure of a range of imprisonment between 51 and
63 months, and the Court so finds that this enhancement is
appropriate and proper.
App. Vol. III, at 8.
After imposing sentence, the district court asked whether the parties had
objections. Counsel for Calzada-Maravillas objected to the lack of notice, as well
as the district court’s imposition of a sua sponte upward departure. Counsel
argued that Calzada-Maravillas was entitled to prior notice of the district court’s
intent to depart upward sua sponte, especially since he pled guilty before Booker.
The district court responded that Calzada-Maravillas could withdraw his guilty
plea, or “[o]therwise we’re going to go forward as we have.” Id. at 14. The
district court overruled the defendant’s objection and imposed sentence.
II.
The notice requirement for guideline departures originated with a Supreme
Court decision interpreting Rule 32 of the Federal Rules of Criminal Procedure.
See Burns v. United States, 501 U.S. 129 (1991). In Burns, the Supreme Court
held that a district court must give parties “reasonable notice” that it is
contemplating an upward or downward departure from the Guidelines. 501 U.S.
at 135 & n.4, 138 (1991). The Court interpreted former Rule 32(a)(1) of the
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Federal Rules of Criminal Procedure, which provided counsel “‘an opportunity to
comment upon the probation officer’s determination and on other matters relating
to the appropriate sentence.’” Id. at 134 (quoting former Fed. R. Crim. P.
32(a)(1)). The Court concluded that the “opportunity to comment” in Rule 32
required the district court to give notice to the parties of its intent to depart
upward or downward. Id. at 136-38.
In 2002, Congress amended Rule 32 to codify the Court’s holding in Burns.
Rule 32(h) requires courts to give reasonable notice to the parties of possible
departures from the applicable sentencing guideline range:
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). Thus, the district court must give reasonable notice to the
defendant of its intent to depart upward sua sponte from the guideline range when
the PSR did not identify grounds for a departure, and the government did not
request a departure. Fed R. Crim. P. 32(h); Burns, 501 U.S. at 135; United States
v. Fuentes, 341 F.3d 1216, 1218 (10th Cir. 2003).
Rule 32 ensures “focused, adversarial resolution of the legal and factual
issues relevant to fixing Guidelines sentences.” Burns, 501 U.S. at 137. We have
recognized that “complete lack of notice . . . short-circuit[s] the significance of
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any opportunity to comment.” United States v. Bartsma, 198 F.3d 1191, 1198-99
(10th Cir. 1999). Moreover, prior notice of the court’s intent to depart sua sponte
allows the parties to “marshal and present evidence opposing any departure.”
United States v. Burdex, 100 F.3d 882, 885 (10th Cir. 1996). Without notice,
both parties are “utterly unprepared to make reasoned arguments to the court.”
Bartsma, 198 F.3d at 1199 n.6. The notice requirement ensures a meaningful
opportunity to develop a full record regarding the proposed departure. Burns, 501
U.S. at 136-38; Fuentes, 341 F.3d at 1218. Without notice, a defendant must
formulate an “on-the-spot defense against an upward departure.” United States v.
Paslay, 971 F.2d 667, 673 (11th Cir. 1992).
To provide the parties the opportunity to hone their legal arguments, the
district court must provide advance notice of its intent to depart. See, e.g., United
States v. Marmolejo, 86 F.3d 404, 420 (5th Cir. 1996); United States v. Jackson,
32 F.3d 1101, 1106 (7th Cir. 1994); United States v. Valentine, 21 F.3d 395, 398
(11th Cir. 1994). The notice requirement is not burdensome – its key component
is that the parties have notice in advance of the sentencing hearing. See United
States v. McCarthy, 97 F.3d 1562, 1580 (8th Cir. 1996) (holding that one day of
notice was sufficient where counsel responded and declined the court’s offer of
additional time).
The parties agree that Booker did not change the notice requirement in Rule
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32(h) and Burns. We recently held in United States v. Dozier that “Rule 32(h)
survives Booker and requires a court to notify both parties of any intention to
depart from the advisory sentencing guidelines as well as the basis for such a
departure when the ground is not identified in the presentence report or in a
party’s prehearing submission.” -- F.3d -- , No. 05-6259, 2006 U.S. App. LEXIS
8208, at *7 (10th Cir. Apr. 5, 2006); see also United States v. Hawk Wing, 433
F.3d 622, 626-27 (8th Cir. 2006) (presuming that Rule 32 survived Booker
without analyzing its effect upon the notice requirement); United States v.
Monroy, 135 Fed. Appx. 190, 193 (10th Cir. June 16, 2005) (unpublished
opinion) (holding in a government appeal that Rule 32(h) survives Booker and
remanding for resentencing when the district court departed downward sua
sponte).
In this case, the district court explained its reasons for departing upward,
but did not indicate whether it imposed a guideline departure or a non-guideline
departure. The district court departed upward because of Calzada-Maravillas’
criminal history, recidivism, and repeated illegal reentry. On the one hand, the
record supports the conclusion that the district court imposed a guideline
departure because the district court departed upward in part because of criminal
history, and U.S.S.G. § 4A1.3 governs upward departures when the criminal
history category is inadequate. But the record also suggests that the district court
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imposed a non-guideline departure to the extent it cited and discussed some of the
factors set forth in 18 U.S.C. § 3553(a). Finally, the district court cited two
subsections from U.S.S.G. § 2L1.2, although these subsections concern a specific
offense characteristic in setting the total offense level and not a guideline
departure under Part K or § 4A1.3.
The departure here may be described as a hybrid departure, as it was based
upon both guideline and non-guideline rationales. Since our remanding for
resentencing due to the lack of notice under either rationale would accomplish the
same result, we will limit our discussion to the lack of notice of the guideline
upward departure. See e.g., Griffin v. Davies, 929 F.2d 550, 554 (10th Cir. 1991)
(stating that “[w]e will not undertake to decide issues that do not affect the
outcome of a dispute”). Accordingly, we need not resolve in this case whether
the notice requirement also applies to non-guideline departures under the factors
listed in 18 U.S.C. § 3553(a).
After Booker, the notice requirement applies to guideline departures under
Part K or § 4A1.3 of the Sentencing Guidelines. We have concluded that
guideline departures in Part K and § 4A1.3 survive Booker. 1 United States v.
Sierra-Castillo, 405 F.3d 932, 936 n.2 (10th Cir. 2005). Because the Supreme
1
At least one circuit has concluded that guideline departures have “been
rendered obsolete by our recent decisions applying Booker.” United States v.
Johnson, 427 F.3d 423, 426 (7th Cir. 2005).
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Court required each district court to “consult those Guidelines and take them into
account when sentencing,” Booker, 543 U.S. at 264, a district court’s sentencing
decision “necessarily includes consideration of these Guideline departure
provisions.” Sierra-Castillo, 405 F.3d at 939 n.5; see also United States v.
McBride, 434 F.3d 470, 477 (6th Cir. 2006) (concluding that, after Booker, “the
appropriate Guideline range -- including Guideline departures -- must still be
considered”); United States v. Haack, 403 F.3d 997, 1002-03 (8th Cir. 2005)
(“Once the applicable range is determined, the court should then decide if a
traditional departure is appropriate under Part K and/or § 4A1.3 of the Federal
Sentencing Guidelines.”); United States v. Crosby, 397 F.3d 103, 113 (2d Cir.
2005) (requiring district courts to decide whether to impose a “sentence that
would have been imposed under the Guidelines,” which is “a sentence within the
applicable Guidelines range or within permissible departure authority,” or a “non-
Guidelines sentence”). Since guideline departures survive Booker, the notice
requirement applies to departures under Part K or § 4A1.3.
III.
The district court erred in failing to give notice by “specifically
identify[ing] the ground on which [it] [wa]s contemplating an upward departure.” 2
2
Calzada-Maravillas further argues that he was also entitled to notice
pursuant to General Order 03-07 of the United States District Court for the
(continued...)
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Burns, 501 U.S. at 138-39. The government concedes that Calzada-Maravillas did
not receive reasonable notice of the court’s anticipated upward departure.
This lack of notice prevented both parties from effectively presenting their
respective positions regarding the departure. The government does not dispute
that the district court’s sua sponte upward departure was a complete surprise to
Calzada-Maravillas. Neither the government nor the PSR recommended the
upward departure. Like the PSR in Burns, the PSR in this case affirmatively
stated that no factors warranted an upward departure. See Burns, 501 U.S. at 131.
By all accounts, the PSR considered Calzada-Maravillas’ criminal history by
recommending a criminal history category of VI and by proposing to add eight
levels to the offense level under U.S.S.G. § 2L1.2(b)(1)(C) for the specific
offense characteristic that he was previously convicted of two aggravated felony
offenses. Calzada-Maravillas relied on the recommendations set forth in the PSR.
As a result, he had no incentive to challenge the circumstances of his prior
convictions or deportations because he had no reason to believe that the court
would rely on them to further increase his sentence.
Nor did the listing of Calzada-Maravillas’ criminal history in the PSR give
him constructive notice of the upward departure. A PSR may satisfy the notice
2
(...continued)
Northern District of Oklahoma. Because Rule 32(h) requires notice, we need not
reach this argument.
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requirement by identifying grounds for an upward departure, which is typically set
forth under a heading such as “Factors that May Warrant Departure.” See United
States v. Queensborough, 227 F.3d 149, 154-55 (3d Cir. 2000). The mere
recitation of a defendant’s criminal history in the PSR does not confer notice of
the possibility of the district court’s sua sponte upward departure based upon that
criminal history. See, e.g., United States v. Carter, 203 F.3d 187, 190 (2d Cir.
2000); United States v. Mangone, 105 F.3d 29, 35 (1st Cir. 1997). If the PSR
does not explicitly identify the defendant’s criminal history as a ground for an
upward departure, it does not provide reasonable notice of the potential for such a
departure, even if it lists the defendant’s criminal history.
Without any advance notice, Calzada-Maravillas had no meaningful
opportunity to respond to the upward departure announced by the court. Defense
counsel was not prepared to present evidence or concise legal argument regarding
the propriety of an upward departure for criminal history, recidivism, or repeated
illegal reentry. Counsel could not be expected to respond extemporaneously to
the applicability of U.S.S.G. § 2L1.2, which the district court cited in departing
upward. Nor was counsel prepared to discuss circumstances that may mitigate
Calzada-Maravillas’ prior convictions or illegal reentries.
The district court did not provide reasonable notice by asking, “Is there
objection to the sentence as imposed?” App. Vol. III, at 12. A district court may
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not cure defective notice by allowing counsel to speak extemporaneously at the
sentencing hearing, especially after it imposes sentence. See Valentine, 21 F.3d
at 397-98. To cure inadequate notice, the district court must inform the parties of
the proposed departure before imposing sentence and allow the parties to prepare
arguments and evidence. See Carter, 203 F.3d at 191. For example, in Carter, the
district court proposed an upward departure at sentencing, but continued the
sentencing to allow the defendant to file an opposition brief and reconvened the
sentencing hearing three days later for oral argument. Id.
The district court erred in failing to provide reasonable notice of its intent
to depart upward, and we must remand for resentencing unless the error is
harmless.
IV.
The government argues that remand for resentencing is unnecessary
because the error was harmless. Because Calzada-Maravillas preserved his
objection, the government has the burden to establish that the error was harmless.
See Fed. R. Crim. P. 52(a). The government’s burden of proof differs depending
upon whether failure to give notice is a constitutional error or a non-constitutional
error. E.g., United States v. Glover, 413 F.3d 1206, 1210 (10th Cir. 2005)
(requiring the government to “demonstrat[e], by a preponderance of the evidence,
that the substantial rights of the defendant were not affected” by a non-
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constitutional error where the defendant preserved his or her objection); United
States v. Lang, 405 F.3d 1060, 1065 (10th Cir. 2005) (requiring the government to
prove that a constitutional error was “harmless beyond a reasonable doubt” where
the defendant preserved his or her objection).
There is some dispute whether failure to give notice is constitutional error
or only non-constitutional error. We have not decided the issue. 3 In the present
case, we need not determine whether lack of notice is constitutional error because
the government fails to demonstrate that the error is harmless under either burden
of proof. See United States v. Himler, 355 F.3d 735, 743 (3d Cir. 2004)
(declining to decide whether lack of notice is a constitutional error because the
government could not demonstrate that the error was harmless, even if it was a
non-constitutional error).
The government claims that failure to give notice is harmless because
Calzada-Maravillas could not change his prior criminal history and his prior
illegal reentries. Under the government’s theory, Calzada-Maravillas could not
3
The notice requirement may implicate the Due Process Clause, and two
circuits have held that failure to give notice was constitutional error. United
States v. Lopreato, 83 F.3d 571, 577 (2d Cir. 1996); United States v. Paslay, 971
F.2d 667, 674 (11th Cir. 1992). Although the Second and Eleventh Circuits have
concluded that failure to give notice is constitutional error, the Supreme Court
declined to address whether the notice requirement was constitutional, and instead
construed Rule 32 to avoid the serious constitutional question that would arise if
it did not require notice. See Burns, 501 U.S. at 138.
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have opposed the departure, and the sentence would have been the same so “any
subsequent remand for resentencing would be futile.” Gov’t Br. at 9.
In response to the government’s claim that lack of notice was not
prejudicial, counsel for Calzada-Maravillas explains that he would have contested
the proposed upward departure and investigated the circumstances of the prior
offenses. Without notice, counsel had no opportunity to address the factors
governing the propriety of a departure. The PSR did not report any details of four
of the defendant’s nine adult convictions. Counsel argues that he wanted to
“investigate whether circumstances exist which mitigate the stale convictions,”
which occurred as early as 1992. Aplt. Br. at 9. By explaining what he would
have done differently if he had notice, Calzada-Maravillas has dispelled the
government’s assertion that he could not have opposed the proposed departure.
The government further asserts that the error is harmless because Calzada-
Maravillas had an incentive to object to the criminal convictions in the PSR since
the district court could consider them in a post-Booker sentencing. The
government contends that notice would not benefit Calzada-Maravillas because
defense counsel indicated that the PSR was accurate. The government would
require defense counsel to challenge any and all negative inferences that could be
drawn from the PSR regardless of their likely effect upon the defendant’s
sentence. Here, Calzada-Maravillas had no reason to know that his criminal
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history or prior illegal reentries would be the basis for an upward departure
because he had a criminal history category of VI, and the PSR affirmatively stated
that no departure was warranted, which implied that the criminal history category
of VI was sufficient. Defendant’s counsel had no reason to investigate or develop
arguments regarding Calzada-Maravillas’ criminal history. If we accept the
government’s view, the defendant would have to fill the record with objections to
information in the PSR that may not be at issue at the sentencing. This seems an
unlikely approach for defense counsel as such objections would unnecessarily
emphasize the defendant’s criminal history.
Essentially, the government asserts that the opportunity to object to the
criminal history in the PSR is synonymous with the opportunity to oppose the
upward departure, but they are not the same. This argument resembles the
contention that the PSR provides constructive notice by listing criminal history,
which other courts have rejected because it would eviscerate Burns and the notice
requirement. See Carter, 203 F.3d at 190-91; Mangone, 105 F.3d at 35.
The government also maintains that Calzada-Maravillas has failed to
advance specific arguments that he would have made below if he had notice. We
will not require the defendant to specify the arguments that he would have made
if he had notice, especially where the defendant objected below and we review for
harmless error. In Burns, the Supreme Court did not require the defendant to
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specify the arguments that he would have made if he had notice before vacating
his sentence. 501 U.S. at 139. Moreover, we have not required specific
arguments from a defendant before remanding for resentencing in a sua sponte
upward departure. See Dozier, -- F.3d -- , No. 05-6259, 2006 U.S. App. LEXIS
8208, at *7 (10th Cir. Apr. 5, 2006). Nor have we required specific arguments
from the government before remanding for resentencing in a sua sponte
downward departure without notice. Fuentes, 341 F.3d at 1217-18. In Fuentes,
we remanded for resentencing without discussing whether the government
objected to lack of notice of downward departure. Id. at 1217-18. We see no
reason to require defendants to specify arguments on appeal when we did not
impose a similar burden upon the government in Fuentes.
Other circuits have vacated the defendant’s sentence and remanded for
resentencing without requiring the defendants to specify on appeal the arguments
that they would have made before the district court. See, e.g., United States v.
Matos, 328 F.3d 34, 44 (1st Cir. 2003) (remanding for resentencing without
stating whether the defendant objected); United States v. Gabriel, 125 F.3d 89,
106 (2d Cir. 1997) (remanding for resentencing where the government conceded
that remand was necessary and without stating whether the defendant objected),
overruled in part on other grounds, United States Quattrone, -- F.3d -- , No. 04-
5007-CR, 2006 WL 700978, at *14 (2d Cir. Mar. 20, 2006); United States v.
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Marmolejo, 86 F.3d 404, 420 (5th Cir. 1996) (remanding for resentencing without
discussing harmless error, even though counsel objected to lack of notice); United
States v. Maxton, 940 F.2d 103, 106-107 (4th Cir. 1991) (remanding for
resentencing without discussing whether defendant objected to lack of notice).
Even when the defendant failed to object to lack of notice, some courts have
concluded that lack of notice constituted plain error. See United States v. Otis,
107 F.3d 487, 489 (7th Cir. 1997) (recognizing plain error because the court’s
upward departure was “improper based only on its stated reasons”); Mangone, 105
F.3d at 34-36 (remanding for resentencing because lack of notice of sua sponte
upward departure was plain error); Valentine, 21 F.3d at 398 (remanding for
resentencing because lack of notice of sua sponte departure was plain error where
the “district court mistakenly relied on nonexistent facts”); but see United States
v. Jones, -- F.3d -- , No. 05-60152, 2006 WL 766691, at **7-8 (5th Cir. Mar. 27,
2006) (affirming sentence because defendant failed to establish plain error since
the record indicated that it was not “reasonably probable that the district court
would have chosen a lesser sentence”).
Two other circuits have required the defendant to explain what he would
have done differently to avoid harmless error, but these cases are distinguishable.
In the Second Circuit, the defendant must “specify arguments he would have
made that the district court did not consider” to avoid harmless error. United
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States v. Rivera, 192 F.3d 81, 88 (2d Cir. 1999). In Rivera, the district court
departed downward on the defendant’s sentence, but departed upward on the term
of supervised release. Id. Rivera is distinguishable because the defendant could
not have opposed the upward departure in the term of supervised release, which
was the “hedge (and therefore the off-set) for the downward departure that
reduced his prison sentence.” Id.
Similarly, the Third Circuit has held that the defendant must prove that “he
would have done things differently had notice been given” to avoid harmless
error. Himler, 355 F.3d at 742-43. Although the Third Circuit required Himler to
make this showing in a harmless error case, it adopted the standard from a plain
error case. Id. at 742 (citing United States v. Reynoso, 254 F.3d 467, 475-76 (3d
Cir. 2001)). The Third Circuit remanded for resentencing where the defendant
described specific measures that he would have employed if he had notice.
Himler, 355 F.3d at 743. We hesitate to require the defendant to make such a
showing in a harmless error case where the government has the burden of proof.
Thus, we decline to accept the government’s invitation to create a double standard
or shift the burden in harmless error review. A defendant is not required to
specify the arguments that he would have made or the evidence that he would
have investigated to avoid harmless error.
Finally, the government asserts that the lack of notice was harmless error
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because the district court’s sentence is reasonable under the advisory guidelines
and fell within the statutory maximum sentence. Although we review sentences
for reasonableness after Booker, sentences outside of the guideline range are not
“entitled to a rebuttable presumption of reasonableness on appeal.” United States
v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006) (per curiam).
The government maintains that this court has affirmed a sentence with a
sua sponte upward departure when “the sentence is reasonable.” Gov’t Br. at 10-
11. The government cites United States v. Tsosie, 376 F.3d 1210, 1218 (10th Cir.
2004), cert. denied, 125 S. Ct. 1298 (2005)), in support of its argument. Tsosie is
distinguishable from the present case. Tsosie did not involve an upward
departure in sentencing, but rather addressed a revocation of supervised release.
376 F.3d at 1212. Moreover, the defendant in Tsosie had notice because the
district court informed the parties of its intent to sentence above the
recommended range at the initial revocation hearing and granted a continuance so
that the defendant could brief the issue. See id.
The government invites this court to evaluate Calzada-Maravillas’ sentence
for reasonableness and ignore the complete lack of notice. We decline to do so in
this case because the government has not shown that the lack of notice in this
case was harmless error.
We REMAND to the district court with directions to vacate Calzada-
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Maravillas’ sentence and resentence.
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