F I L E D

United States Court of Appeals

Tenth Circuit

April 17, 2006

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 05-5029

ARMANDO CALZADAMARAVILLAS,

Defendant-Appellant.

Appeal From The United States District Court

For The Northern District of Oklahoma

(D.C. No. 04-CR-106-001-HDC )

Robert A. Ridenour, Assistant Federal Public Defender (Paul D. Brunton, Federal

Public Defender, and Barry L. Derryberry, with him on the brief), Tulsa,

Oklahoma, for Defendant-Appellant.

Loretta F. Radford, Assistant United States Attorney (David E. O’Meilia, United

States Attorney, with her on the brief), Tulsa, Oklahoma, for Plaintiff-Appellee.

Before BRISCOE, McKAY, and McCONNELL , Circuit Judges.

BRISCOE , Circuit Judge.

Defendant Armando Calzada-Maravillas pled guilty to reentry of a deported
-2-

alien after former conviction of an aggravated felony in violation of 8 U.S.C. §

1326(a) and (b)(1) and (2). At sentencing, the district court sua sponte departed

upward, and sentenced Calzada-Maravillas to 58 months’ imprisonment. CalzadaMaravillas appeals his sentence, claiming that the district court erred in departing

upward without providing notice to him in violation of Rule 32(h) of the Federal

Rules of Criminal Procedure and United States v. Burns, 501 U.S. 129 (1991). In

response, the United States argues that the lack of notice was harmless error. 

We exercise jurisdiction pursuant to 28 U.S.C. § 1291. We remand to the

district court with directions to vacate defendant’s sentence and resentence. 

I. 

On September 27, 2004, Calzada-Maravillas pled guilty to reentry of a 

deported alien after former conviction of an aggravated felony. The presentence

report (“PSR”) concluded that Calzada-Maravillas had a total offense level of 13,

a criminal history category of VI, and a guideline range of 33 to 41 months. In

calculating the total offense level, the PSR proposed the addition of eight levels

under U.S.S.G. § 2L1.2(b)(1)(C) because defendant was previously convicted of

two aggravated felony offenses. Although the PSR listed nine adult criminal

convictions, the PSR stated that “[t]he probation officer ha[d] discovered no

factor, of a kind, or to a degree, not adequately taken into consideration in the

formulation of the guideline sentencing range, that would warrant a departure
-3-

from the prescribed guideline calculations.” PSR ¶ 52, App. Vol. II, at 13. 

Neither party objected to the PSR. 

The district court sentenced Calzada-Maravillas on February 23, 2005,

which was after the Supreme Court decided United States v. Booker, 543 U.S.

220 (2005). While the PSR recommended a guideline range of 33 to 41 months’

imprisonment, the district court sua sponte departed upward and sentenced

Calzada-Maravillas to 58 months’ imprisonment. The district court stated that

“an upward departure is of course warranted” when the criminal history category

of VI “does not adequately reflect the seriousness of defendant’s conduct.” App.

Vol. III, at 6. The district court listed three “aggravating factors that could

warrant that upward departure”: (1) “three prior sentences not used in the

calculation of the criminal history category, two of which were controlled

substance violations”; (2) the “recidivist nature of the defendant’s criminal past”;

and (3) the likelihood that he will reenter the United States “because he has done

so at least eight times in the past.” App. Vol. III, at 6. 

The district court explained why it departed from the guideline range: 

A review of offense level enhancement for a period of criminal

convictions assists in reaching a departure level. Section

2L1.2(b)(1)(C) provides for an eight-level increase for a prior

conviction for aggravated felony, and Section 2L1.2(b)(1)(D)

provides a four-level increase for a conviction for any other felony,

and these enhancements are triggered by just one prior conviction. In

this case the defendant has a total of seven prior felony convictions,

at least two of which are aggravated felonies. 
-4-

Based on the defendant’s criminal history and pattern of repetitive

conduct, a four-level increase of the offense level appears to be

appropriate, just and reasonable. This would provide an offense

level of 17 combined with a criminal history of VI, and provides a

guideline for a departure of a range of imprisonment between 51 and

63 months, and the Court so finds that this enhancement is

appropriate and proper. 

App. Vol. III, at 8. 

After imposing sentence, the district court asked whether the parties had

objections. Counsel for Calzada-Maravillas objected to the lack of notice, as well

as the district court’s imposition of a sua sponte upward departure. Counsel

argued that Calzada-Maravillas was entitled to prior notice of the district court’s

intent to depart upward sua sponte, especially since he pled guilty before Booker. 

The district court responded that Calzada-Maravillas could withdraw his guilty

plea, or “[o]therwise we’re going to go forward as we have.” Id. at 14. The

district court overruled the defendant’s objection and imposed sentence. 

II.

The notice requirement for guideline departures originated with a Supreme

Court decision interpreting Rule 32 of the Federal Rules of Criminal Procedure. 

See Burns v. United States, 501 U.S. 129 (1991). In Burns, the Supreme Court

held that a district court must give parties “reasonable notice” that it is

contemplating an upward or downward departure from the Guidelines. 501 U.S.

at 135 & n.4, 138 (1991). The Court interpreted former Rule 32(a)(1) of the
-5-

Federal Rules of Criminal Procedure, which provided counsel “‘an opportunity to

comment upon the probation officer’s determination and on other matters relating

to the appropriate sentence.’” Id. at 134 (quoting former Fed. R. Crim. P.

32(a)(1)). The Court concluded that the “opportunity to comment” in Rule 32

required the district court to give notice to the parties of its intent to depart

upward or downward. Id. at 136-38. 

In 2002, Congress amended Rule 32 to codify the Court’s holding in Burns. 

Rule 32(h) requires courts to give reasonable notice to the parties of possible

departures from the applicable sentencing guideline range:

Before the court may depart from the applicable sentencing range on

a ground not identified for departure either in the presentence report

or in a party’s prehearing submission, the court must give the parties

reasonable notice that it is contemplating such a departure. The

notice must specify any ground on which the court is contemplating a

departure.

Fed. R. Crim. P. 32(h). Thus, the district court must give reasonable notice to the

defendant of its intent to depart upward sua sponte from the guideline range when

the PSR did not identify grounds for a departure, and the government did not

request a departure. Fed R. Crim. P. 32(h); Burns, 501 U.S. at 135; United States

v. Fuentes, 341 F.3d 1216, 1218 (10th Cir. 2003). 

Rule 32 ensures “focused, adversarial resolution of the legal and factual

issues relevant to fixing Guidelines sentences.” Burns, 501 U.S. at 137. We have

recognized that “complete lack of notice . . . short-circuit[s] the significance of
-6-

any opportunity to comment.” United States v. Bartsma, 198 F.3d 1191, 1198-99

(10th Cir. 1999). Moreover, prior notice of the court’s intent to depart sua sponte

allows the parties to “marshal and present evidence opposing any departure.” 

United States v. Burdex, 100 F.3d 882, 885 (10th Cir. 1996). Without notice,

both parties are “utterly unprepared to make reasoned arguments to the court.” 

Bartsma, 198 F.3d at 1199 n.6. The notice requirement ensures a meaningful

opportunity to develop a full record regarding the proposed departure. Burns, 501

U.S. at 136-38; Fuentes, 341 F.3d at 1218. Without notice, a defendant must

formulate an “on-the-spot defense against an upward departure.” United States v.

Paslay, 971 F.2d 667, 673 (11th Cir. 1992). 

 To provide the parties the opportunity to hone their legal arguments, the

district court must provide advance notice of its intent to depart. See, e.g., United

States v. Marmolejo, 86 F.3d 404, 420 (5th Cir. 1996); United States v. Jackson,

32 F.3d 1101, 1106 (7th Cir. 1994); United States v. Valentine, 21 F.3d 395, 398

(11th Cir. 1994). The notice requirement is not burdensome – its key component

is that the parties have notice in advance of the sentencing hearing. See United

States v. McCarthy, 97 F.3d 1562, 1580 (8th Cir. 1996) (holding that one day of

notice was sufficient where counsel responded and declined the court’s offer of

additional time). 

The parties agree that Booker did not change the notice requirement in Rule
-7-

32(h) and Burns. We recently held in United States v. Dozier that “Rule 32(h)

survives Booker and requires a court to notify both parties of any intention to

depart from the advisory sentencing guidelines as well as the basis for such a

departure when the ground is not identified in the presentence report or in a

party’s prehearing submission.” -- F.3d -- , No. 05-6259, 2006 U.S. App. LEXIS

8208, at *7 (10th Cir. Apr. 5, 2006); see also United States v. Hawk Wing, 433

F.3d 622, 626-27 (8th Cir. 2006) (presuming that Rule 32 survived Booker

without analyzing its effect upon the notice requirement); United States v.

Monroy, 135 Fed. Appx. 190, 193 (10th Cir. June 16, 2005) (unpublished

opinion) (holding in a government appeal that Rule 32(h) survives Booker and

remanding for resentencing when the district court departed downward sua

sponte). 

In this case, the district court explained its reasons for departing upward,

but did not indicate whether it imposed a guideline departure or a non-guideline

departure. The district court departed upward because of Calzada-Maravillas’

criminal history, recidivism, and repeated illegal reentry. On the one hand, the

record supports the conclusion that the district court imposed a guideline

departure because the district court departed upward in part because of criminal

history, and U.S.S.G. § 4A1.3 governs upward departures when the criminal

history category is inadequate. But the record also suggests that the district court
1

 At least one circuit has concluded that guideline departures have “been

rendered obsolete by our recent decisions applying Booker.” United States v.

Johnson, 427 F.3d 423, 426 (7th Cir. 2005).

-8-

imposed a non-guideline departure to the extent it cited and discussed some of the

factors set forth in 18 U.S.C. § 3553(a). Finally, the district court cited two

subsections from U.S.S.G. § 2L1.2, although these subsections concern a specific

offense characteristic in setting the total offense level and not a guideline

departure under Part K or § 4A1.3. 

The departure here may be described as a hybrid departure, as it was based

upon both guideline and non-guideline rationales. Since our remanding for

resentencing due to the lack of notice under either rationale would accomplish the

same result, we will limit our discussion to the lack of notice of the guideline

upward departure. See e.g., Griffin v. Davies, 929 F.2d 550, 554 (10th Cir. 1991)

(stating that “[w]e will not undertake to decide issues that do not affect the

outcome of a dispute”). Accordingly, we need not resolve in this case whether

the notice requirement also applies to non-guideline departures under the factors

listed in 18 U.S.C. § 3553(a). 

After Booker, the notice requirement applies to guideline departures under

Part K or § 4A1.3 of the Sentencing Guidelines. We have concluded that

guideline departures in Part K and § 4A1.3 survive Booker.

1

 United States v.

Sierra-Castillo, 405 F.3d 932, 936 n.2 (10th Cir. 2005). Because the Supreme
2

 Calzada-Maravillas further argues that he was also entitled to notice

pursuant to General Order 03-07 of the United States District Court for the

(continued...)

-9-

Court required each district court to “consult those Guidelines and take them into

account when sentencing,” Booker, 543 U.S. at 264, a district court’s sentencing

decision “necessarily includes consideration of these Guideline departure

provisions.” Sierra-Castillo, 405 F.3d at 939 n.5; see also United States v.

McBride, 434 F.3d 470, 477 (6th Cir. 2006) (concluding that, after Booker, “the

appropriate Guideline range -- including Guideline departures -- must still be

considered”); United States v. Haack, 403 F.3d 997, 1002-03 (8th Cir. 2005)

(“Once the applicable range is determined, the court should then decide if a

traditional departure is appropriate under Part K and/or § 4A1.3 of the Federal

Sentencing Guidelines.”); United States v. Crosby, 397 F.3d 103, 113 (2d Cir.

2005) (requiring district courts to decide whether to impose a “sentence that

would have been imposed under the Guidelines,” which is “a sentence within the

applicable Guidelines range or within permissible departure authority,” or a “nonGuidelines sentence”). Since guideline departures survive Booker, the notice

requirement applies to departures under Part K or § 4A1.3. 

III.

The district court erred in failing to give notice by “specifically

identify[ing] the ground on which [it] [wa]s contemplating an upward departure.”2
2

(...continued)

Northern District of Oklahoma. Because Rule 32(h) requires notice, we need not

reach this argument. 

-10-

Burns, 501 U.S. at 138-39. The government concedes that Calzada-Maravillas did

not receive reasonable notice of the court’s anticipated upward departure.

This lack of notice prevented both parties from effectively presenting their

respective positions regarding the departure. The government does not dispute

that the district court’s sua sponte upward departure was a complete surprise to

Calzada-Maravillas. Neither the government nor the PSR recommended the

upward departure. Like the PSR in Burns, the PSR in this case affirmatively

stated that no factors warranted an upward departure. See Burns, 501 U.S. at 131. 

By all accounts, the PSR considered Calzada-Maravillas’ criminal history by

recommending a criminal history category of VI and by proposing to add eight

levels to the offense level under U.S.S.G. § 2L1.2(b)(1)(C) for the specific

offense characteristic that he was previously convicted of two aggravated felony

offenses. Calzada-Maravillas relied on the recommendations set forth in the PSR. 

As a result, he had no incentive to challenge the circumstances of his prior

convictions or deportations because he had no reason to believe that the court

would rely on them to further increase his sentence. 

Nor did the listing of Calzada-Maravillas’ criminal history in the PSR give

him constructive notice of the upward departure. A PSR may satisfy the notice
-11-

requirement by identifying grounds for an upward departure, which is typically set

forth under a heading such as “Factors that May Warrant Departure.” See United

States v. Queensborough, 227 F.3d 149, 154-55 (3d Cir. 2000). The mere

recitation of a defendant’s criminal history in the PSR does not confer notice of

the possibility of the district court’s sua sponte upward departure based upon that

criminal history. See, e.g., United States v. Carter, 203 F.3d 187, 190 (2d Cir.

2000); United States v. Mangone, 105 F.3d 29, 35 (1st Cir. 1997). If the PSR

does not explicitly identify the defendant’s criminal history as a ground for an

upward departure, it does not provide reasonable notice of the potential for such a

departure, even if it lists the defendant’s criminal history. 

Without any advance notice, Calzada-Maravillas had no meaningful

opportunity to respond to the upward departure announced by the court. Defense

counsel was not prepared to present evidence or concise legal argument regarding

the propriety of an upward departure for criminal history, recidivism, or repeated

illegal reentry. Counsel could not be expected to respond extemporaneously to

the applicability of U.S.S.G. § 2L1.2, which the district court cited in departing

upward. Nor was counsel prepared to discuss circumstances that may mitigate

Calzada-Maravillas’ prior convictions or illegal reentries. 

The district court did not provide reasonable notice by asking, “Is there

objection to the sentence as imposed?” App. Vol. III, at 12. A district court may
-12-

not cure defective notice by allowing counsel to speak extemporaneously at the

sentencing hearing, especially after it imposes sentence. See Valentine, 21 F.3d

at 397-98. To cure inadequate notice, the district court must inform the parties of

the proposed departure before imposing sentence and allow the parties to prepare

arguments and evidence. See Carter, 203 F.3d at 191. For example, in Carter, the

district court proposed an upward departure at sentencing, but continued the

sentencing to allow the defendant to file an opposition brief and reconvened the

sentencing hearing three days later for oral argument. Id.

The district court erred in failing to provide reasonable notice of its intent

to depart upward, and we must remand for resentencing unless the error is

harmless. 

IV. 

The government argues that remand for resentencing is unnecessary

because the error was harmless. Because Calzada-Maravillas preserved his

objection, the government has the burden to establish that the error was harmless. 

See Fed. R. Crim. P. 52(a). The government’s burden of proof differs depending

upon whether failure to give notice is a constitutional error or a non-constitutional

error. E.g., United States v. Glover, 413 F.3d 1206, 1210 (10th Cir. 2005)

(requiring the government to “demonstrat[e], by a preponderance of the evidence,

that the substantial rights of the defendant were not affected” by a non-
3

 The notice requirement may implicate the Due Process Clause, and two

circuits have held that failure to give notice was constitutional error. United

States v. Lopreato, 83 F.3d 571, 577 (2d Cir. 1996); United States v. Paslay, 971

F.2d 667, 674 (11th Cir. 1992). Although the Second and Eleventh Circuits have

concluded that failure to give notice is constitutional error, the Supreme Court

declined to address whether the notice requirement was constitutional, and instead

construed Rule 32 to avoid the serious constitutional question that would arise if

it did not require notice. See Burns, 501 U.S. at 138. 

-13-

constitutional error where the defendant preserved his or her objection); United

States v. Lang, 405 F.3d 1060, 1065 (10th Cir. 2005) (requiring the government to

prove that a constitutional error was “harmless beyond a reasonable doubt” where

the defendant preserved his or her objection).

There is some dispute whether failure to give notice is constitutional error

or only non-constitutional error. We have not decided the issue.3 In the present

case, we need not determine whether lack of notice is constitutional error because

the government fails to demonstrate that the error is harmless under either burden

of proof. See United States v. Himler, 355 F.3d 735, 743 (3d Cir. 2004)

(declining to decide whether lack of notice is a constitutional error because the

government could not demonstrate that the error was harmless, even if it was a

non-constitutional error). 

The government claims that failure to give notice is harmless because

Calzada-Maravillas could not change his prior criminal history and his prior

illegal reentries. Under the government’s theory, Calzada-Maravillas could not
-14-

have opposed the departure, and the sentence would have been the same so “any

subsequent remand for resentencing would be futile.” Gov’t Br. at 9. 

In response to the government’s claim that lack of notice was not

prejudicial, counsel for Calzada-Maravillas explains that he would have contested

the proposed upward departure and investigated the circumstances of the prior

offenses. Without notice, counsel had no opportunity to address the factors

governing the propriety of a departure. The PSR did not report any details of four

of the defendant’s nine adult convictions. Counsel argues that he wanted to

“investigate whether circumstances exist which mitigate the stale convictions,”

which occurred as early as 1992. Aplt. Br. at 9. By explaining what he would

have done differently if he had notice, Calzada-Maravillas has dispelled the

government’s assertion that he could not have opposed the proposed departure. 

The government further asserts that the error is harmless because CalzadaMaravillas had an incentive to object to the criminal convictions in the PSR since

the district court could consider them in a post-Booker sentencing. The

government contends that notice would not benefit Calzada-Maravillas because

defense counsel indicated that the PSR was accurate. The government would

require defense counsel to challenge any and all negative inferences that could be

drawn from the PSR regardless of their likely effect upon the defendant’s

sentence. Here, Calzada-Maravillas had no reason to know that his criminal
-15-

history or prior illegal reentries would be the basis for an upward departure

because he had a criminal history category of VI, and the PSR affirmatively stated

that no departure was warranted, which implied that the criminal history category

of VI was sufficient. Defendant’s counsel had no reason to investigate or develop

arguments regarding Calzada-Maravillas’ criminal history. If we accept the

government’s view, the defendant would have to fill the record with objections to

information in the PSR that may not be at issue at the sentencing. This seems an

unlikely approach for defense counsel as such objections would unnecessarily

emphasize the defendant’s criminal history. 

Essentially, the government asserts that the opportunity to object to the

criminal history in the PSR is synonymous with the opportunity to oppose the

upward departure, but they are not the same. This argument resembles the

contention that the PSR provides constructive notice by listing criminal history,

which other courts have rejected because it would eviscerate Burns and the notice

requirement. See Carter, 203 F.3d at 190-91; Mangone, 105 F.3d at 35. 

The government also maintains that Calzada-Maravillas has failed to

advance specific arguments that he would have made below if he had notice. We

will not require the defendant to specify the arguments that he would have made

if he had notice, especially where the defendant objected below and we review for

harmless error. In Burns, the Supreme Court did not require the defendant to
-16-

specify the arguments that he would have made if he had notice before vacating

his sentence. 501 U.S. at 139. Moreover, we have not required specific

arguments from a defendant before remanding for resentencing in a sua sponte

upward departure. See Dozier, -- F.3d -- , No. 05-6259, 2006 U.S. App. LEXIS

8208, at *7 (10th Cir. Apr. 5, 2006). Nor have we required specific arguments

from the government before remanding for resentencing in a sua sponte

downward departure without notice. Fuentes, 341 F.3d at 1217-18. In Fuentes,

we remanded for resentencing without discussing whether the government

objected to lack of notice of downward departure. Id. at 1217-18. We see no

reason to require defendants to specify arguments on appeal when we did not

impose a similar burden upon the government in Fuentes. 

Other circuits have vacated the defendant’s sentence and remanded for

resentencing without requiring the defendants to specify on appeal the arguments

that they would have made before the district court. See, e.g., United States v.

Matos, 328 F.3d 34, 44 (1st Cir. 2003) (remanding for resentencing without

stating whether the defendant objected); United States v. Gabriel, 125 F.3d 89,

106 (2d Cir. 1997) (remanding for resentencing where the government conceded

that remand was necessary and without stating whether the defendant objected),

overruled in part on other grounds, United States Quattrone, -- F.3d -- , No. 04-

5007-CR, 2006 WL 700978, at *14 (2d Cir. Mar. 20, 2006); United States v.
-17-

Marmolejo, 86 F.3d 404, 420 (5th Cir. 1996) (remanding for resentencing without

discussing harmless error, even though counsel objected to lack of notice); United

States v. Maxton, 940 F.2d 103, 106-107 (4th Cir. 1991) (remanding for

resentencing without discussing whether defendant objected to lack of notice). 

Even when the defendant failed to object to lack of notice, some courts have

concluded that lack of notice constituted plain error. See United States v. Otis,

107 F.3d 487, 489 (7th Cir. 1997) (recognizing plain error because the court’s

upward departure was “improper based only on its stated reasons”); Mangone, 105

F.3d at 34-36 (remanding for resentencing because lack of notice of sua sponte

upward departure was plain error); Valentine, 21 F.3d at 398 (remanding for

resentencing because lack of notice of sua sponte departure was plain error where

the “district court mistakenly relied on nonexistent facts”); but see United States

v. Jones, -- F.3d -- , No. 05-60152, 2006 WL 766691, at **7-8 (5th Cir. Mar. 27,

2006) (affirming sentence because defendant failed to establish plain error since

the record indicated that it was not “reasonably probable that the district court

would have chosen a lesser sentence”). 

 Two other circuits have required the defendant to explain what he would

have done differently to avoid harmless error, but these cases are distinguishable. 

In the Second Circuit, the defendant must “specify arguments he would have

made that the district court did not consider” to avoid harmless error. United
-18-

States v. Rivera, 192 F.3d 81, 88 (2d Cir. 1999). In Rivera, the district court

departed downward on the defendant’s sentence, but departed upward on the term

of supervised release. Id. Rivera is distinguishable because the defendant could

not have opposed the upward departure in the term of supervised release, which

was the “hedge (and therefore the off-set) for the downward departure that

reduced his prison sentence.” Id. 

Similarly, the Third Circuit has held that the defendant must prove that “he

would have done things differently had notice been given” to avoid harmless

error. Himler, 355 F.3d at 742-43. Although the Third Circuit required Himler to

make this showing in a harmless error case, it adopted the standard from a plain

error case. Id. at 742 (citing United States v. Reynoso, 254 F.3d 467, 475-76 (3d

Cir. 2001)). The Third Circuit remanded for resentencing where the defendant

described specific measures that he would have employed if he had notice. 

Himler, 355 F.3d at 743. We hesitate to require the defendant to make such a

showing in a harmless error case where the government has the burden of proof. 

Thus, we decline to accept the government’s invitation to create a double standard

or shift the burden in harmless error review. A defendant is not required to

specify the arguments that he would have made or the evidence that he would

have investigated to avoid harmless error. 

Finally, the government asserts that the lack of notice was harmless error
-19-

because the district court’s sentence is reasonable under the advisory guidelines

and fell within the statutory maximum sentence. Although we review sentences

for reasonableness after Booker, sentences outside of the guideline range are not

“entitled to a rebuttable presumption of reasonableness on appeal.” United States

v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006) (per curiam). 

The government maintains that this court has affirmed a sentence with a

sua sponte upward departure when “the sentence is reasonable.” Gov’t Br. at 10-

11. The government cites United States v. Tsosie, 376 F.3d 1210, 1218 (10th Cir.

2004), cert. denied, 125 S. Ct. 1298 (2005)), in support of its argument. Tsosie is

distinguishable from the present case. Tsosie did not involve an upward

departure in sentencing, but rather addressed a revocation of supervised release. 

376 F.3d at 1212. Moreover, the defendant in Tsosie had notice because the

district court informed the parties of its intent to sentence above the

recommended range at the initial revocation hearing and granted a continuance so

that the defendant could brief the issue. See id. 

The government invites this court to evaluate Calzada-Maravillas’ sentence

for reasonableness and ignore the complete lack of notice. We decline to do so in

this case because the government has not shown that the lack of notice in this

case was harmless error. 

We REMAND to the district court with directions to vacate Calzada-
-20-

Maravillas’ sentence and resentence.