United States v. Serafin Hernandez-Garcia , 398 F. App'x 275 ( 2010 )


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  •                                                                            FILED
    NOT FOR PUBLICATION                             OCT 05 2010
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                        No. 09-50549
    Plaintiff - Appellee,             D.C. No. 3:09-cr-01802-GT
    v.
    MEMORANDUM *
    SERAFIN HERNANDEZ-GARCIA,
    Defendant - Appellant.
    Appeal from the United States District Court
    for the Southern District of California
    Gordon Thompson, District Judge, Presiding
    Submitted September 13, 2010 **
    Before:        SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.
    Serafin Hernandez-Garcia appeals from the 33-month sentence imposed
    following his guilty-plea conviction for being a deported alien found in the United
    States, in violation of 
    8 U.S.C. § 1326
    . We have jurisdiction under 
    28 U.S.C. § 1291
    , and we vacate and remand.
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    **
    The panel unanimously concludes this case is suitable for decision
    without oral argument. See Fed. R. App. P. 34(a)(2).
    Hernandez-Garcia contends the district court did not comply with Federal
    Rule of Criminal Procedure 32(h)’s requirement that it provide notice of its intent
    to depart upward from the applicable Sentencing Guidelines range. We agree.
    Neither the presentence report nor the Government’s pretrial submission
    identified the district court’s grounds for departure, and the district court itself did
    not provide notice by the outset of the sentencing hearing of the factual and legal
    basis supporting its intent to depart. See Fed. R. Crim. P. 32(h) (notice must
    specify the ground on which the departure is based); United States v. Evans-
    Martinez, 
    530 F.3d 1164
    , 1168 (9th Cir. 2008) (explaining that parties must
    receive notice of the basis of the departure so the issues are “fully aired”); United
    States v. Hernandez, 
    251 F.3d 1247
    , 1251 n.4 (9th Cir.) (“district courts must in
    any case provide notice of a potential departure not later than the outset of the
    sentencing hearing”), amended by 
    280 F.3d 1216
     (9th Cir. 2001). We vacate and
    remand for resentencing because we “cannot be confident that the issues which
    impacted sentencing were thoroughly tested as intended under Rule 32(h).” See
    Evans-Martinez, 
    530 F.3d at 1168
    .
    In light of our disposition of the Rule 32 issue, we do not address
    Hernandez-Garcia’s remaining contentions.
    VACATED and REMANDED.
    2                                      09-50549
    

Document Info

Docket Number: 09-50549

Citation Numbers: 398 F. App'x 275

Judges: Silverman, Callahan, Smith

Filed Date: 10/5/2010

Precedential Status: Non-Precedential

Modified Date: 11/5/2024