UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-4903

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

EDUARDO RICO PACHECO, a/k/a Juan Silverio Cruz,

Defendant - Appellant.

Appeal from the United States District Court for the Western 

District of North Carolina, at Statesville. Richard L. 

Voorhees, District Judge. (5:11-cr-00071-RLV-DCK-1)

Submitted: May 30, 2013 Decided: June 4, 2013

Before MOTZ and DUNCAN, Circuit Judges, and HAMILTON, Senior 

Circuit Judge.

Affirmed in part, vacated in part, and remanded by unpublished 

per curiam opinion.

D. Baker McIntyre, III, Charlotte, North Carolina, for 

Appellant. Amy Elizabeth Ray, Assistant United States Attorney, 

Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Eduardo Rico Pacheco pleaded guilty pursuant to a 

written plea agreement to illegally reentering the United States 

after having been removed based upon a felony conviction, in 

violation of 8 U.S.C. § 1326(a), (b)(1) (2006). The district 

court calculated Pacheco’s Guidelines range under the U.S. 

Sentencing Guidelines Manual (2011) at ten to sixteen months’ 

imprisonment. The court stated that an upward departure was 

warranted in light of Pacheco’s repeated illegal reentries and 

risk of recidivism. Neither this ground nor any other ground 

for departure was mentioned in the presentence investigation 

report or prior to the sentencing hearing. After announcing its 

decision to depart, the court sentenced Pacheco to thirty

months’ imprisonment.

On appeal, counsel has filed a brief pursuant to 

Anders v. California, 386 U.S. 738 (1967), certifying that there 

are no meritorious issues for appeal, but questioning the 

district court’s compliance with Federal Rule of Criminal 

Procedure 11 and the reasonableness of the sentence. Pacheco 

was advised of his right to file a pro se supplemental brief, 

but has not done so. The Government declined to file a brief. 

We affirm Pacheco’s conviction, vacate his sentence, and remand 

for resentencing.
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Because Pacheco did not move in the district court to 

withdraw his guilty plea, we review the Rule 11 hearing for 

plain error. United States v. Martinez, 277 F.3d 517, 525 (4th 

Cir. 2002). To prevail under this standard, Pacheco must 

establish that an error occurred, was plain, and affected his 

substantial rights. United States v. Massenburg, 564 F.3d 337, 

342-43 (4th Cir. 2009). Our review of the record establishes 

that the district court substantially complied with Rule 11’s 

requirements, ensuring that Pacheco’s plea was knowing and 

voluntary. We therefore affirm Pacheco’s conviction.

We review Pacheco’s sentence under a deferential 

abuse-of-discretion standard. Gall v. United States, 552 U.S. 

38, 51 (2007). This review requires consideration of both the 

procedural and substantive reasonableness of the sentence. Id.; 

United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010). After 

determining whether the district court correctly calculated the 

advisory Guidelines range, we must decide whether the court 

considered the 18 U.S.C. § 3553(a) (2006) factors, analyzed the 

arguments presented by the parties, and sufficiently explained 

the selected sentence. Lynn, 592 F.3d at 575-76; United States 

v. Carter, 564 F.3d 325, 330 (4th Cir. 2009). Once we have 

determined that the sentence is free of procedural error, we 

consider the substantive reasonableness of the sentence, 
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“tak[ing] into account the totality of the circumstances.” 

Gall, 552 U.S. at 51; Lynn, 592 F.3d at 575. 

We conclude that the district court committed 

procedural error in failing to provide notice to the parties 

that it was contemplating an upward departure. Federal Rule of 

Criminal Procedure 32(h) requires the district court to provide 

“reasonable notice” of an intent to depart on a ground not 

previously identified by the presentence investigation report or 

one of the parties and to specify the ground of departure. Fed. 

R. Crim. P. 32(h). Because Pacheco failed to object to the 

district court’s failure to provide notice, we review the upward 

departure for plain error. See United States v. Olano, 507 U.S. 

725, 732 (1993). Pacheco must therefore establish that an error 

occurred, was plain, and affected his substantial rights. 

Massenburg, 564 F.3d at 342-43.

We conclude that an error occurred because the court 

denied the parties an opportunity to comment by failing to 

inform them that it was contemplating an upward departure. The 

error was also plain because the decision to depart upward 

without providing notice to the parties violated the clear 

direction of Rule 32(h). Finally, because the error resulted in 

an increased sentence, nearly double the upper limit of the 

Guidelines range, Pacheco’s substantial rights were affected. 

United States v. Spring, 305 F.3d 276, 282-83 (4th Cir. 2002). 
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Accordingly, we vacate Pacheco’s sentence and remand for further 

proceedings.∗

 

In accordance with Anders, we have reviewed the entire 

record in this case and have found no other meritorious issues. 

We therefore affirm Pacheco’s conviction, vacate his sentence, 

and remand for resentencing to allow the district court to 

provide the required notice of its intent to consider an upward 

departure. This court requires that counsel inform Pacheco, in 

writing, of the right to petition the Supreme Court of the 

United States for further review. If Pacheco requests that a 

petition be filed, but counsel believes that such a petition 

would be frivolous, then counsel may move in this court for 

leave to withdraw from representation. Counsel’s motion must 

state that a copy thereof was served on Pacheco. We dispense 

with oral argument because the facts and legal contentions are 

adequately presented in the materials before this court and 

argument would not aid the decisional process.

AFFIRMED IN PART,

VACATED IN PART,

AND REMANDED

 ∗ By this disposition we express no opinion as to the 

appropriateness of a departure or variance on remand if the 

required procedures are observed.