FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

January 9, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 05-10771

Non-Argument Calendar

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D. C. Docket No. 04-20688-CR-KMM

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

JORGE ENRIQUE RAMIREZ FLOREZ, 

Defendant-Appellant. 

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Appeal from the United States District Court

for the Southern District of Florida

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(January 9, 2006)

Before BLACK, BARKETT and HULL, Circuit Judges.

PER CURIAM:
The PSI listed the following: (1) eight arrests between 1981 and 1996 on such charges as 1

grand theft, theft, burglary, receiving stolen property, carrying a concealed weapon, and false

identification to a peace officer, where each of the charges were ultimately dismissed; (2) three

arrests between 1994 and 1996 on charges of illegal entry or deportation proceedings, where, for

each of the charges, Ramirez Florez was removed or voluntarily returned to Mexico; (3) two

arrests, one in 1985 for possession of a controlled substance and one in 1996 for larceny, where,

for each of the charges, a bench warrant was issued and the charge remained active; and (4) three

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Jorge Enrique Ramirez Florez appeals his 36-month sentence imposed after

pleading guilty to unlawful attempted reentry after deportation following the

commission of a felony, in violation of 8 U.S.C. §§ 1326(a), (b)(1). On appeal,

Ramirez Florez argues that the district court erred when it failed to provide prior

notice of its intent to depart upwardly from the guidelines and also when it

addressed Ramirez Florez’s counsel, rather than Ramirez Florez personally,

regarding his desire to allocute. After review, we vacate Ramirez Florez’s

sentence and remand for resentencing.

I. FACTUAL BACKGROUND

Ramirez Florez, an alien, pled guilty to unlawfully arriving at Miami

International Airport after having been previously deported from the United States

in May 1994 as a convicted felon. As to Ramirez Florez’s criminal history, the

Presentence Investigation Report (“PSI”) listed one criminal conviction, a 1993

state conviction for grand theft. The PSI also listed sixteen arrests ranging from

1981 to 1996, but provided the factual circumstances for only one arrest, a 1996

arrest for larceny. The PSI stated that the circumstances for the other arrests were

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arrests, one in 1982 for grand theft, one in 1985 for possession of stolen property, and one in

1999 for illegal entry, where, for each of the charges, the disposition of the charge was unknown.

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not available. The PSI recommended a total adjusted offense level of 10, a

criminal history category II and a guideline range of 8 to 14 months’

imprisonment. The PSI also recommended that there were no factors warranting a

departure.

At the sentencing hearing, Ramirez Florez and the government each

indicated that they had no objections to the PSI. The district court then announced

its intention to depart upwardly from the guideline range based on Ramirez

Florez’s multiple arrests and deportations. Defense counsel objected to the use of

the arrests because those cases had been dismissed and the government failed to

provide the information needed to permit the court to determine whether Ramirez

Florez was guilty of the offenses. 

The district court asked defense counsel, “Anything else? Does he want to

say anything?” Defense counsel responded, “No, thank you, Your Honor.” The

district court then upwardly departed and sentenced Ramirez Florez to 36 months’

imprisonment. At the time sentence was imposed, the district court did not

reference U.S.S.G. § 4A1.3 as the basis for the upward departure. However, the

district court later filed a statement of reasons indicating that it had departed above

the guidelines range pursuant to § 4A1.3 because Ramirez Florez’s criminal history
Although Ramirez Flores did not lodge an objection with the district court that he had

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received insufficient notice of the upward departure, he contends that plain-error review should

not apply to this issue because he was unable to make a proper objection at sentencing due to the

district court’s failure to make clear the basis for its upward departure. Because we conclude

that the district court committed reversible error under the more stringent plain-error standard,

we need not resolve this issue.

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category had under-represented the seriousness of Ramirez Florez’s criminal

history and his likelihood that he would reenter the United States. This appeal

followed.

II. STANDARD OF REVIEW

On appeal, Ramirez Florez claims the district court erred by failing to give

him the required notice of its intent to upwardly depart and by failing to address

Ramirez Florez personally and invite him to allocute. Ramirez Florez failed to

object at sentencing on the grounds now raised on appeal, and thus we review for

plain error. United States v. Zinn, 321 F.3d 1084, 1087 (11 Cir. 2003). We

th 2

correct plain error when: (1) there is error; (2) the error is plain; (3) it affects the

defendant’s substantial rights; and (4) it seriously affects the fairness, integrity or

public reputation of the judicial proceedings. United States v. Romano, 314 F.3d

1279, 1281 (11 Cir. 2002). th

II. DISCUSSION

Ramirez Florez argues, and the government agrees, that the district court

improperly departed upward from the guidelines range because it did not give
Rule 32 was recently amended to reflect the Supreme Court’s holding in Burns, and the 3

failure to provide the notice required in Rule 32 is commonly referred to as a Burns violation.

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notice prior to the sentencing hearing that it would consider an upward departure. 

We also agree.

Federal Rule of Criminal Procedure 32 permits a court to depart from the

applicable guidelines range on a ground not identified in the PSI or in the

government’s pre-hearing submission only if it provides a criminal defendant

reasonable notice specifying the ground upon which it is contemplating a

departure. See Fed. R. Crim. P. 32(h); see also Burns v. United States, 501 U.S.

129, 138-39 111 S. Ct. 2182, 2187 (1991). We have held that “reasonable notice”

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requires, at a minimum, that notice be given before the sentencing hearing. United

States v. Jones, 1 F.3d 1167, 1169 (11 Cir. 1993). th

Here, the district court plainly erred by not giving Ramirez Florez notice

before the sentencing hearing that it was contemplating an upward departure under

U.S.S.G. § 4A1.3. The PSI did not suggest an upward departure, and the

government made no such suggestion in its pre-hearing submission. The first

mention of a possible departure from the guidelines range was made by the district

court at the sentencing hearing. Thus, there was error that was plain, satisfying the

first two prongs of plain-error review.

As to the third prong, the Burns-notice error affected Ramirez Florez’s
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substantial rights under the factual circumstances of this case. See United States v.

Valentine, 21 F.3d 395, 397-98 (11 Cir. 1994) (holding that district court th

committed plain error when it failed to provide pre-hearing notice of an upward

departure, relied upon unsupported factual assumptions as a basis for the departure

and imposed a sentence substantially in excess of the guidelines range). First, if

defense counsel had known prior to the hearing that Ramirez Florez’s prior arrests

might be used to support an upward departure, he would have had an opportunity

to marshal facts to contest a departure on this basis. See id. at 398 (explaining that

defendant was prejudiced because the lack of pre-hearing notice deprived counsel

of the opportunity to contest factual assumptions used to support upward

departure). Second, Ramirez Florez has presented arguments on appeal

challenging the use of the prior arrests and shown that they could have been made

at sentencing if given adequate notice of the upward departure. See Jones, 1 F.3d

at 1171. 

Third, the district court sentenced Ramirez Florez to a term of imprisonment

(36 months) significantly higher than the applicable guidelines range (8 to 14

months). See Valentine, 21 F.3d at 398 (pointing to the defendant’s “substantial

extra prison time” in determining that defendant was prejudiced by the erroneous

upward departure). Under the circumstances of this case, Ramirez Florez has
 Because we conclude that the district court plainly erred in upwardly departing in 4

violation of Rule 32 and Burns, we need not address Ramirez Florez’s many other arguments,

such as that: (1) the district court improperly relied on the arrest reports as a basis for the upward

departure, especially where they were not supported by a factual summary of each arrest drawn

from a police report; (2) the district court erred in failing to make a “guided” departure as

required by U.S.S.G. § 4A1.3(a)(4); and (3) due process and ex post facto considerations require

that he be sentenced on remand within the applicable guidelines range because his offense and

conviction occurred prior to United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005). 

These arguments are properly directed in the first instance to the district court at resentencing.

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shown not only that the error affected his substantial rights, but also that the error

seriously affected the fairness and integrity of the sentencing hearing. Based on

the foregoing, we vacate and remand for resentencing, with instructions to provide

reasonable Burns notice if an upward departure under § 4A1.3 will be considered.4

Although the district court’s Burns violation alone requires us to vacate and

remand for resentencing, we note that the parties agree that the district court also

erred when it failed to address Ramirez Florez personally in inquiring about

Ramirez Florez’s desire to allocute. See Fed. R. Crim. P. 32(i)(4)(A)(ii) (providing

that, before imposing sentence, the district court must personally address the

defendant “in order to permit the defendant to speak or present any information to

mitigate the sentence”); United States v. Prouty, 303 F.3d 1249, 1251-52 & n.1

(11 Cir. 2002) (holding that the district court plainly erred when it offered the th

opportunity to allocute to defense counsel rather than to defendant personally). At

resentencing, the district court will have the opportunity to address Ramirez Florez

personally and invite him to speak.
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Finally, we decline Ramirez Florez’s request that we reassign this case to a

different judge on remand. Ramirez Florez agrees that this district judge does not

harbor any personal animus toward him. We see no basis in this record for

reassignment. See United States v. Torkington, 874 F.2d 1441, 1446-47 (11 Cir. th

1989) (stating factors to consider when this Court is exercising its authority to

order reassignment); see also United States v. Gupta, 363 F.3d 1169, 1177 (11th

Cir. 2004) (rejecting a request for reassignment and holding that there was no

reason to doubt the district judge’s judgment or impartiality, even if the judge were

to impose the same sentence he suggested at the previous sentencing). 

In conclusion, because of the plain error in the lack of the pre-hearing notice

required by Rule 32 and Burns, we vacate Ramirez Florez’s sentence and remand

for a new sentencing consistent with this opinion.

VACATED and REMANDED.