United States v. Serafin Hernandez-Garcia

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NOT FOR PUBLICATION OCT 05 2010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