United States v. Jones ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4404
GEORGE EDWARD JONES,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Charles H. Haden II, Chief District Judge.
(CR-95-179)
Submitted: May 6, 1997
Decided: May 22, 1997
Before WIDENER and MURNAGHAN, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
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Vacated and remanded by unpublished per curiam opinion.
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COUNSEL
Brenda Craig Ellis, Charleston, West Virginia, for Appellant. Rebecca
A. Betts, United States Attorney, Susan M. Arnold, Assistant United
States Attorney, Charleston, West Virginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
George Edward Jones pled guilty to mail fraud, 18 U.S.C. § 1341(1994), and false representation of a Social Security number, 42
U.S.C.A. § 408(a)(7)(B) (West Supp. 1997). The district court calcu-
lated an offense level of 15 and determined that Jones' nine criminal
history points placed him in category IV, producing a sentencing
range of 30-37 months.* Finding that category IV was inadequate, the
court sua sponte departed upward to criminal history category VI
although neither the probation officer nor the government had sug-
gested that a departure would be appropriate. After establishing a new
sentencing range of 41-51 months, the court imposed a sentence of 51
months. Jones appeals this sentence, contending that the district court
erred in departing without giving him adequate notice and that the
departure was not justified. We vacate the sentence and remand for
resentencing.
In Burns v. United States, 501 U.S. 129, 138 (1991), the Supreme
Court held that a sentencing court may not depart upward for a reason
not identified in the presentence report or a government motion as a
possible ground for departure without first giving the defendant rea-
sonable notice that it is considering departure on that specific ground.
See also United States v. Maddox, 48 F.3d 791, 799 (4th Cir. 1995);
United States v. Maxton, 940 F.2d 103, 106 (4th Cir. 1991). Because
Jones received no notice of a possible departure, Burns requires that
he be resentenced.
Accordingly, we vacate the sentence and remand for resentencing.
We express no opinion on the merits of the departure. Should the dis-
trict court again wish to depart, it must give the parties reasonable
advance notice that it may depart and the grounds for the departure
being considered. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
VACATED AND REMANDED
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*United States Sentencing Commission, Guidelines Manual, § 5A
(Nov. 1995).
2