United States v. Montoya-Cerda ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-41020
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
ISMAEL MONTOYA-CERDA, also known as Miguel Angel Ramirez
Ramirez
Defendant - Appellant
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-01-CR-206-3
--------------------
June 27, 2002
Before KING, Chief Judge, and DAVIS and EMILIO M. GARZA, Circuit
Judges.
PER CURIAM:*
Ismael Montoya-Cerda contends that the district court did
not provide him with adequate notice that it was considering an
upward departure from the sentencing guidelines under the rule in
Burns v. United States, 501 U.S. 129 (1991). Because Montoya
objected to the upward departure and indicated adequately that
the lack of notice was the basis for his objection, we review
this issue de novo. See United States v. Knight, 76 F.3d 86, 87
*
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this opinion should not be published and is not precedent except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. 01-41020
-2-
(5th Cir. 1996); cf. United States v. Milton, 147 F.3d 414, 419
(5th Cir. 1998) (reviewing for plain error because the defendant
“did not object, move for a continuance, or in any way indicate
that the lack of notice of the basis for the upward departure had
prejudiced him at the sentencing hearing”).
Burns requires that the defendant be provided with
reasonable notice that the district court is considering an
upward departure. See 501 U.S. at 138-39. “The holding in Burns
was based upon the concern that ‘parties will address possible
sua sponte departure in a random and wasteful way by trying to
anticipate and negate every conceivable ground on which the
district court might choose to depart on its own initiative.’”
Milton, 147 F.3d at 418 (quoting Burns, 501 U.S. at 137).
The Government contends that the district court did provide
reasonable notice by stating at the sentencing hearing that it
was considering an upward departure and by giving the reasons for
the departure: that Montoya had created a hazardous situation by
transporting the aliens in an unventilated container with
hazardous materials and by threatening the mother of a three-
year-old child which was crying at the time the container was
passing through a border checkpoint. The Government’s argument
is without merit. Although these facts were reported in the
presentence report, the defense was not advised prior to the
sentencing hearing that they would be considered as a basis for
an upward departure. The district court’s notice was not
No. 01-41020
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reasonable because it required Montoya to anticipate and prepare
to address all possible bases for departure. See Milton, 147
F.3d at 418; see also United States v. Brooks, No. 00-10072, slip
op. at 7-8 (5th Cir. Dec. 13, 2000) (unpublished) (vacating and
remanding sentence because district court did not notify defense
prior to sentencing hearing that it was considering upward
departure and basis for departure). The sentence is vacated and
the case is remanded to the district court for further
proceedings.
VACATED AND REMANDED.