## 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. 05-5029ARMANDO 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 Defend er (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 Attorne y (David E. O’Meilia, United States Attorney, with her on the brief), Tulsa, Okl ahoma, 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 felo ny in violation of 8 U.S.C. § 1326(a) and (b)(1) and (2). At sentencing, the dis trict 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 violationof Rule 32(h) of the Federal Rules of Criminal Procedure and United States v. Bu rns , 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. § 12 91. We remand to the district court with directions to vacate defendant’ s sentence and resentence.
I. On September 27, 2004, Calzada-Maravillas pled guil ty to reentry of a deported alien after former conviction of an aggrav ated felony. The presentence report (“PSR”) concluded that Calzada-Maravillas ha d 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 propos ed the addition of eight levels under U.S.S.G. § 2L1.2(b)(1)(C) because defendant w as previously convicted of two aggravated felony offenses. Although the PSR l isted nine adult criminal convictions, the PSR stated that “[t]he probation o fficer ha[d] discovered no factor, of a kind, or to a degree, not adequately t aken into consideration in the formulation of the guideline sentencing range, thatwould 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 St ates 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 “a ggravating factors that could warrant that upward departure”: (1) “three prior s entences not used in the calculation of the criminal history category, two o f which were controlled substance violations”; (2) the “recidivist nature o f the defendant’s criminal past”; and (3) the likelihood that he will reenter the Uni ted States “because he has done so at least eight times in the past.” App. Vol. II I, at 6. The district court explained why it departed from t he 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 forany other felony, and these enhancements are triggered by just one pr ior 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 provi de an offense level of 17 combined with a criminal history of VI, and provides a guideline for a departure of a range of imprisonmen t between 51 and 63 months, and the Court so finds that this enhance ment is appropriate and proper. App. Vol. III, at 8. After imposing sentence, the district court asked w hether the parties had objections. Counsel for Calzada-Maravillas objecte d 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 prio r 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-Maravilla s 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 ori ginated 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 “reaso nable 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 fo rmer Rule 32(a)(1) of the-5-

Federal Rules of Criminal Procedure, which providedcounsel “‘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 “opportuni ty to comment” in Rule 32 required the district court to give notice to the p arties of its intent to depart upward or downward. Id. at 136-38. In 2002, Congress amended Rule 32 to codify the Cou rt’s holding in Burns

. Rule 32(h) requires courts to give reasonable notic e to the parties of possible departures from the applicable sentencing guideline range: Before the court may depart from the applicable sen tencing range on a ground not identified for departure either in the presentence report or in a party’s prehearing submission, the court mu st give the parties reasonable notice that it is contemplating such a d eparture. The notice must specify any ground on which the court i s contemplating a departure. Fed. R. Crim. P. 32(h). Thus, the district court m ust 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.” B urns , 501 U.S. at 137. We have recognized that “complete lack of notice . . . sho rt-circuit[s] the significance of-6-

any opportunity to comment.” United States v. Bart sma , 198 F.3d 1191, 1198-99 (10th Cir. 1999). Moreover, prior notice of the co urt’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 noti ce, both parties are “utterly unprepared to make reason ed arguments to the court.”
Bartsma , 198 F.3d at 1199 n.6. The notice requirement ens ures 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 mu st formulate an “on-the-spot defense against an upwarddeparture.” 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 bu rdensome – its key component is that the parties have notice in advance of the s entencing 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 d eclined the court’s offer of additional time). The parties agree that Bookerdid not change the notice requirement in Rule-7-

32(h) and Burns . We recently held in United States v. Dozierthat “Rule 32(h) survives Bookerand requires a court to notify both parties of anyintention to depart from the advisory sentencing guidelines as w ell 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. 0 5-6259, 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 Ru le 32 survived Booker without analyzing its effect upon the notice requir ement); 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 Bookerand remanding for resentencing when the district court departed downward sua sponte ). In this case, the district court explained its reas ons for departing upward, but did not indicate whether it imposed a guideline departure or a non-guideline departure. The district court departed upward beca use of Calzada-Maravillas’ criminal history, recidivism, and repeated illegal reentry. On the one hand, the record supports the conclusion that the district co urt imposed a guideline departure because the district court departed upwar d 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 als o suggests that the district court1 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 s ubsections 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 dep arture, as it was based upon both guideline and non-guideline rationales. Since our remanding for resentencing due to the lack of notice under eitherrationale would accomplish the same result, we will limit our discussion to the la ck 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 is sues that do not affect the outcome of a dispute”). Accordingly, we need not r esolve in this case whether the notice requirement also applies to non-guidelin e 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 Supreme2 Calzada-Maravillas further argues that he was also entitled to notice

pursuant to General Order 03-07 of the United State s District Court for the (continued...) -9- Court required each district court to “consult thos e Guidelines and take them into account when sentencing,” Booker , 543 U.S. at 264, a district court’s sentencing decision “necessarily includes consideration of the se 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,” whic h is “a sentence within the applicable Guidelines range or within permissible d eparture 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.” 22 (...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 thatCalzada-Maravillas did not receive reasonable notice of the court’s antici pated upward departure. This lack of notice prevented both parties from eff ectively 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 departur e. See Burns , 501 U.S. at 131. By all accounts, the PSR considered Calzada-Maravil las’ 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 convi cted of two aggravated felony offenses. Calzada-Maravillas relied on the recomme ndations set forth in the PSR. As a result, he had no incentive to challenge the c ircumstances of his prior convictions or deportations because he had no reaso n 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. APSR may satisfy the notice-11-

requirement by identifying grounds for an upward de parture, 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 crimin al history as a ground for an upward departure, it does not provide reasonable no tice of the potential for such a departure, even if it lists the defendant’s crimina l history. Without any advance notice, Calzada-Maravillas had no meaningful opportunity to respond to the upward departure anno unced by the court. Defense counsel was not prepared to present evidence or con cise legal argument regarding the propriety of an upward departure for criminal h istory, 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 di strict court cited in departing upward. Nor was counsel prepared to discuss circum stances that may mitigate Calzada-Maravillas’ prior convictions or illegal re entries. The district court did not provide reasonable notic e by asking, “Is there objection to the sentence as imposed?” App. Vol. I II, at 12. A district court may-12-

not cure defective notice by allowing counsel to sp eak extemporaneously at the sentencing hearing, especially after it imposes sen tence. See Valentine , 21 F.3d at 397-98. To cure inadequate notice, the districtcourt 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 sent encing, but continued the sentencing to allow the defendant to file an opposi tion brief and reconvened the sentencing hearing three days later for oral argume nt. Id. The district court erred in failing to provide reas onable notice of its intent to depart upward, and we must remand for resentenci ng 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 establi sh that the error was harmless.
See Fed. R. Crim. P. 52(a). The government’s burden o f proof differs depending upon whether failure to give notice is a constituti onal 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 p reponderance of the evidence, that the substantial rights of the defendant were n ot affected” by a non-3 The notice requirement may implicate the Due Proce ss 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 Secon d and Eleventh Circuits have concluded that failure to give notice is constituti onal error, the Supreme Court declined to address whether the notice requirement was constitutional, and instead construed Rule 32 to avoid the serious constitution al 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 bey ond a reasonable doubt” where the defendant preserved his or her objection). There is some dispute whether failure to give notic e is constitutional error or only non-constitutional error. We have not deci ded 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 co nstitutional 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 i s harmless because Calzada-Maravillas could not change his prior crimi nal 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 explain s that he would have contested the proposed upward departure and investigated the circumstances of the prior offenses. Without notice, counsel had no opportuni ty to address the factors governing the propriety of a departure. The PSR di d not report any details of four of the defendant’s nine adult convictions. Counsel argues that he wanted to “investigate whether circumstances exist which miti gate 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-Mar avillas has dispelled the government’s assertion that he could not have oppos ed the proposed departure. The government further asserts that the error is harmless because CalzadaMaravillas had an incentive to object to the crimin al convictions in the PSR since the district court could consider them in a post-Bo okersentencing. The government contends that notice would not benefit C alzada-Maravillas because defense counsel indicated that the PSR was accurate . The government would require defense counsel to challenge any and all ne gative inferences that could be drawn from the PSR regardless of their likely effec t upon the defendant’s sentence. Here, Calzada-Maravillas had no reason t o know that his criminal-15-

history or prior illegal reentries would be the bas is for an upward departure because he had a criminal history category of VI, a nd the PSR affirmatively stated that no departure was warranted, which implied thatthe criminal history category of VI was sufficient. Defendant’s counsel had no r eason to investigate or develop arguments regarding Calzada-Maravillas’ criminal hi story. 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 objec tions 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 notic e by listing criminal history, which other courts have rejected because it would e viscerate 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-Maravill as 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 argum ents 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 t o-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 res entencing 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 resentenci ng in a sua sponte downward departure without notice. Fuentes , 341 F.3d at 1217-18. In Fuentes , we remanded for resentencing without discussing whe ther the government objected to lack of notice of downward departure. Id. at 1217-18. We see no reason to require defendants to specify arguments o n appeal when we did not impose a similar burden upon the government in Fuentes

. Other circuits have vacated the defendant’s sentenc e and remanded for resentencing without requiring the defendants to sp ecify 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 re sentencing without stating whether the defendant objected); United States v. Gabriel , 125 F.3d 89, 106 (2d Cir. 1997) (remanding for resentencing wher e the government conceded that remand was necessary and without stating wheth er 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, 2 006); United States v.-17-

Marmolejo , 86 F.3d 404, 420 (5th Cir. 1996) (remanding for r esentencing without discussing harmless error, even though counsel obje cted to lack of notice); United
States v. Maxton , 940 F.2d 103, 106-107 (4th Cir. 1991) (remanding for resentencing without discussing whether defendant o bjected 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 err or. See United States v. Otis , 107 F.3d 487, 489 (7th Cir. 1997) (recognizing plai n error because the court’s upward departure was “improper based only on its st ated 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 nonexisten t facts”); butsee 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 pr obable 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. Riverais distinguishable because the defendant could not have opposed the upward departure in the term o f 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 defe ndant 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 r equired Himler to make this showing in a harmless error case, it adop ted 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 resent encing where the defendant described specific measures that he would have empl oyed if he had notice. Himler , 355 F.3d at 743. We hesitate to require the defe ndant to make such a showing in a harmless error case where the governme nt has the burden of proof. Thus, we decline to accept the government’s invitat ion to create a double standard or shift the burden in harmless error review. A de fendant is not required to specify the arguments that he would have made or th e evidence that he would have investigated to avoid harmless error. Finally, the government asserts that the lack of no tice was harmless error-19-

because the district court’s sentence is reasonable under the advisory guidelines and fell within the statutory maximum sentence. Al though we review sentences for reasonableness after Booker , sentences outside of the guideline range are not “entitled to a rebuttable presumption of reasonable ness on appeal.” United States v. Kristl , 437 F.3d 1050, 1054 (10th Cir. 2006) (per curiam)

. The government maintains that this court has affirm ed 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 argume nt. Tsosie is distinguishable from the present case. Tsosie did not involve an upward departure in sentencing, but rather addressed a rev ocation of supervised release. 376 F.3d at 1212. Moreover, the defendant in Tsosi e had notice because the district court informed the parties of its intent t o 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 Calza da-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 thatthe 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.