[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
January 9, 2006
No. 05-10771 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-20688-CR-KMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JORGE ENRIQUE RAMIREZ FLOREZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(January 9, 2006)
Before BLACK, BARKETT and HULL, Circuit Judges.
PER CURIAM:
Jorge Enrique Ramirez Florez appeals his 36-month sentence imposed after
pleading guilty to unlawful attempted reentry after deportation following the
commission of a felony, in violation of 8 U.S.C. §§ 1326(a), (b)(1). On appeal,
Ramirez Florez argues that the district court erred when it failed to provide prior
notice of its intent to depart upwardly from the guidelines and also when it
addressed Ramirez Florez’s counsel, rather than Ramirez Florez personally,
regarding his desire to allocute. After review, we vacate Ramirez Florez’s
sentence and remand for resentencing.
I. FACTUAL BACKGROUND
Ramirez Florez, an alien, pled guilty to unlawfully arriving at Miami
International Airport after having been previously deported from the United States
in May 1994 as a convicted felon. As to Ramirez Florez’s criminal history, the
Presentence Investigation Report (“PSI”) listed one criminal conviction, a 1993
state conviction for grand theft. The PSI also listed sixteen arrests ranging from
1981 to 1996, but provided the factual circumstances for only one arrest, a 1996
arrest for larceny.1 The PSI stated that the circumstances for the other arrests were
1
The PSI listed the following: (1) eight arrests between 1981 and 1996 on such charges as
grand theft, theft, burglary, receiving stolen property, carrying a concealed weapon, and false
identification to a peace officer, where each of the charges were ultimately dismissed; (2) three
arrests between 1994 and 1996 on charges of illegal entry or deportation proceedings, where, for
each of the charges, Ramirez Florez was removed or voluntarily returned to Mexico; (3) two
arrests, one in 1985 for possession of a controlled substance and one in 1996 for larceny, where,
for each of the charges, a bench warrant was issued and the charge remained active; and (4) three
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not available. The PSI recommended a total adjusted offense level of 10, a
criminal history category II and a guideline range of 8 to 14 months’
imprisonment. The PSI also recommended that there were no factors warranting a
departure.
At the sentencing hearing, Ramirez Florez and the government each
indicated that they had no objections to the PSI. The district court then announced
its intention to depart upwardly from the guideline range based on Ramirez
Florez’s multiple arrests and deportations. Defense counsel objected to the use of
the arrests because those cases had been dismissed and the government failed to
provide the information needed to permit the court to determine whether Ramirez
Florez was guilty of the offenses.
The district court asked defense counsel, “Anything else? Does he want to
say anything?” Defense counsel responded, “No, thank you, Your Honor.” The
district court then upwardly departed and sentenced Ramirez Florez to 36 months’
imprisonment. At the time sentence was imposed, the district court did not
reference U.S.S.G. § 4A1.3 as the basis for the upward departure. However, the
district court later filed a statement of reasons indicating that it had departed above
the guidelines range pursuant to § 4A1.3 because Ramirez Florez’s criminal history
arrests, one in 1982 for grand theft, one in 1985 for possession of stolen property, and one in
1999 for illegal entry, where, for each of the charges, the disposition of the charge was unknown.
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category had under-represented the seriousness of Ramirez Florez’s criminal
history and his likelihood that he would reenter the United States. This appeal
followed.
II. STANDARD OF REVIEW
On appeal, Ramirez Florez claims the district court erred by failing to give
him the required notice of its intent to upwardly depart and by failing to address
Ramirez Florez personally and invite him to allocute. Ramirez Florez failed to
object at sentencing on the grounds now raised on appeal, and thus we review for
plain error. United States v. Zinn, 321 F.3d 1084, 1087 (11 th Cir. 2003).2 We
correct plain error when: (1) there is error; (2) the error is plain; (3) it affects the
defendant’s substantial rights; and (4) it seriously affects the fairness, integrity or
public reputation of the judicial proceedings. United States v. Romano, 314 F.3d
1279, 1281 (11 th Cir. 2002).
II. DISCUSSION
Ramirez Florez argues, and the government agrees, that the district court
improperly departed upward from the guidelines range because it did not give
2
Although Ramirez Flores did not lodge an objection with the district court that he had
received insufficient notice of the upward departure, he contends that plain-error review should
not apply to this issue because he was unable to make a proper objection at sentencing due to the
district court’s failure to make clear the basis for its upward departure. Because we conclude
that the district court committed reversible error under the more stringent plain-error standard,
we need not resolve this issue.
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notice prior to the sentencing hearing that it would consider an upward departure.
We also agree.
Federal Rule of Criminal Procedure 32 permits a court to depart from the
applicable guidelines range on a ground not identified in the PSI or in the
government’s pre-hearing submission only if it provides a criminal defendant
reasonable notice specifying the ground upon which it is contemplating a
departure. See Fed. R. Crim. P. 32(h); see also Burns v. United States, 501 U.S.
129, 138-39 111 S. Ct. 2182, 2187 (1991).3 We have held that “reasonable notice”
requires, at a minimum, that notice be given before the sentencing hearing. United
States v. Jones, 1 F.3d 1167, 1169 (11 th Cir. 1993).
Here, the district court plainly erred by not giving Ramirez Florez notice
before the sentencing hearing that it was contemplating an upward departure under
U.S.S.G. § 4A1.3. The PSI did not suggest an upward departure, and the
government made no such suggestion in its pre-hearing submission. The first
mention of a possible departure from the guidelines range was made by the district
court at the sentencing hearing. Thus, there was error that was plain, satisfying the
first two prongs of plain-error review.
As to the third prong, the Burns-notice error affected Ramirez Florez’s
3
Rule 32 was recently amended to reflect the Supreme Court’s holding in Burns, and the
failure to provide the notice required in Rule 32 is commonly referred to as a Burns violation.
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substantial rights under the factual circumstances of this case. See United States v.
Valentine, 21 F.3d 395, 397-98 (11 th Cir. 1994) (holding that district court
committed plain error when it failed to provide pre-hearing notice of an upward
departure, relied upon unsupported factual assumptions as a basis for the departure
and imposed a sentence substantially in excess of the guidelines range). First, if
defense counsel had known prior to the hearing that Ramirez Florez’s prior arrests
might be used to support an upward departure, he would have had an opportunity
to marshal facts to contest a departure on this basis. See id. at 398 (explaining that
defendant was prejudiced because the lack of pre-hearing notice deprived counsel
of the opportunity to contest factual assumptions used to support upward
departure). Second, Ramirez Florez has presented arguments on appeal
challenging the use of the prior arrests and shown that they could have been made
at sentencing if given adequate notice of the upward departure. See Jones, 1 F.3d
at 1171.
Third, the district court sentenced Ramirez Florez to a term of imprisonment
(36 months) significantly higher than the applicable guidelines range (8 to 14
months). See Valentine, 21 F.3d at 398 (pointing to the defendant’s “substantial
extra prison time” in determining that defendant was prejudiced by the erroneous
upward departure). Under the circumstances of this case, Ramirez Florez has
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shown not only that the error affected his substantial rights, but also that the error
seriously affected the fairness and integrity of the sentencing hearing. Based on
the foregoing, we vacate and remand for resentencing, with instructions to provide
reasonable Burns notice if an upward departure under § 4A1.3 will be considered.4
Although the district court’s Burns violation alone requires us to vacate and
remand for resentencing, we note that the parties agree that the district court also
erred when it failed to address Ramirez Florez personally in inquiring about
Ramirez Florez’s desire to allocute. See Fed. R. Crim. P. 32(i)(4)(A)(ii) (providing
that, before imposing sentence, the district court must personally address the
defendant “in order to permit the defendant to speak or present any information to
mitigate the sentence”); United States v. Prouty, 303 F.3d 1249, 1251-52 & n.1
(11 th Cir. 2002) (holding that the district court plainly erred when it offered the
opportunity to allocute to defense counsel rather than to defendant personally). At
resentencing, the district court will have the opportunity to address Ramirez Florez
personally and invite him to speak.
4
Because we conclude that the district court plainly erred in upwardly departing in
violation of Rule 32 and Burns, we need not address Ramirez Florez’s many other arguments,
such as that: (1) the district court improperly relied on the arrest reports as a basis for the upward
departure, especially where they were not supported by a factual summary of each arrest drawn
from a police report; (2) the district court erred in failing to make a “guided” departure as
required by U.S.S.G. § 4A1.3(a)(4); and (3) due process and ex post facto considerations require
that he be sentenced on remand within the applicable guidelines range because his offense and
conviction occurred prior to United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005).
These arguments are properly directed in the first instance to the district court at resentencing.
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Finally, we decline Ramirez Florez’s request that we reassign this case to a
different judge on remand. Ramirez Florez agrees that this district judge does not
harbor any personal animus toward him. We see no basis in this record for
reassignment. See United States v. Torkington, 874 F.2d 1441, 1446-47 (11 th Cir.
1989) (stating factors to consider when this Court is exercising its authority to
order reassignment); see also United States v. Gupta, 363 F.3d 1169, 1177 (11 th
Cir. 2004) (rejecting a request for reassignment and holding that there was no
reason to doubt the district judge’s judgment or impartiality, even if the judge were
to impose the same sentence he suggested at the previous sentencing).
In conclusion, because of the plain error in the lack of the pre-hearing notice
required by Rule 32 and Burns, we vacate Ramirez Florez’s sentence and remand
for a new sentencing consistent with this opinion.
VACATED and REMANDED.
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