* This order and judgment is not binding precedent except under the doctrines of

law of the case, res judicataand collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### June 16, 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellant,

v. JOSE SANTOS MONROY, Defendant - Appellee. No. 04-3234 (D. Kansas) (D.Ct. No. 04-CR-10006-JTM)

ORDER AND JUDGMENT *

Before KELLY , O’BRIEN , and TYMKOVICH , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. On March 10, 2004, Jose Santos Monroy pled guilty t o illegal re-entry after deportation subsequent to a conviction for an aggra vated felony in violation of 81 The statute allows for imprisonment for no more than twenty years. See 18

U.S.C. § 1326(b)(2).

2The PIR and the eventual sentence applied the November 2003 edition of the United States Sentencing Guidelines. SeeUnited States Sentencing Commission, Guidelines Manual

(Nov. 2003). -2- U.S.C. § 1326(a) and (b)(2). On June 1, 2004, the district court departed downward from the sentencing guidelines and sentenc ed Monroy to forty-six months imprisonment. 1 The Government appeals. Exercising jurisdiction under 18 U.S.C. § 3742(b) and 28 U.S.C. § 1291, we VACATE the sentence and REMAND for resentencing. Background In aid of sentencing, the district court ordered pr eparation of a Presentence Investigation Report (PIR). The PIR calculated a t otal offense level of 21 and a criminal history category of V, resulting in a guid eline range of 70 to 87 months. 2 Monroy moved for downward departure, see 18 U.S.C. § 3553(b)(1) (allowing departures under strict conditions but since excise d by United States v. Booker , -- U.S. -- , 125 S.Ct. 738, 756 (2005)), on two ground s: 1) the criminal history category assigned to him in the PIR substantially o ver-represented the seriousness of his criminal history or the likelihood he would commit other crimes, see USSG §4A1.3(b)(1) and 2) cultural assimilation. See USSG §5K2.0(a). At sentencing, the court downward departed in criminal history cat egory from V to IV on the ground category V over-represented the seriousness of Monroy’s criminal history.3 In his reply brief, Monroy contends, inter alia , that his sentence violates the

decision in Blakely v. Washington, -- U.S.--, 124 S.Ct. 2531 (2004), in which the Supreme Court applied its decision in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”), to invalidate, under the Sixth Amendment, application of Washington’s sentencing guidelines. In Booker, the Court subsequently extended its ruling in Blakelyto invalidate the federal sentencing guidelines insofar as they were mandatory. 125 S.Ct. at 745. Given our decision to vacate Monroy’s sentence and remand for resentencing on an alternate basis, we need not decide his Blakely claim or the propriety of raising it for the first time in his reply brief. -3- The court also downward departed two offense levels , to 19, on the ground of exceptional rehabilitation -- a ground not identifi ed in the PIR, specifically advanced by Monroy, noticed to either party or argu ed at sentencing. The consequent guideline range was 46 to 57 months. Th e court sentenced Monroy at the low end of the range.
Discussion The Government appeals each of the downward departu res ordered by the district court. 3 Inter alia , the Government challenges the court’s failure to give reasonable notice it was contemplating a downward d eparture for exceptional rehabilitation, a departure awarded only at the con clusion of the sentencing hearing. We first consider the appropriate standard of revie w to apply to the Government’s claim. The Government did not object to the court’s award of a downward departure for exceptional rehabilitation a nd raises its objection for the-4-

first time on appeal. At first blush, this would s uggest we should review for plain

error. See F ED
. R. C RIM
. P. 52(b). However, where a “complete lack of notic e made it impossible for the parties to anticipate th e nature of the [downward departure] and short-circuited the significance of any opportunity to comment[,]” we will not consider the party who objects for the first time on appeal to have waived objection at the trial level. United States v. Bartsma, 198 F.3d 1191, 1198 (10th Cir. 1999). We therefore review for harmless error. See F ED
. R. C RIM
. P. 52(a).
In Burns v. United States (a case in which the district court departed upward without prior notice to the parties of its c ontemplation of same), the Court held: [B]efore a district court can depart upward on a gr ound not identified as a ground for upward departure either in the pres entence report or in a prehearing submission by the Government, Rule 32 requires that the district court give the parties reasonable noti ce that it is contemplating such a ruling. 501 U.S. 129, 138 (1991). Significantly, the Court noted “[i]t is equally appropriate to frame the issue as whether the parties are entitled to notice before the district court departs upward or downward from the Guidelines range. Under Rule 32, it is clear that the defendant and the Gov ernment enjoy equal procedural entitlements.” Id. at 135 n.4. With the Burns decision in mind, Rule 32 was amended in 2002:4 Bookeris clear that the offending aspect of § 3553(b)(1) is not its reference to

departures but rather its language mandating application of the guidelines. “[T]he existence of § 3553(b)(1) is a necessary condition of the constitutional violation. That is to say, without this provision – namely the provision that makes the relevant sentencing rules mandatory and imposes binding requirements on all sentencing judges – the statute falls outside the scope of Apprendi'srequirement.” Booker, 125 S.Ct. at 764 (internal quotation marks, ellipsis and alteration omitted). -5- Notice of Possible Departure from Sentencing Guidel ines

. 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.
F ED
. R. C RIM
. P. 32(h). See also Advisory Committee Notes to Rule 32, 2002 Amendments (explaining Burns provenance); Bartsma, 198 F.3d at 1199-1200 ( Burns violated where the court, without prior notice to p arties that it contemplated doing so, imposed sex offender registr ation requirement as condition of supervised release). Based on the for egoing, we conclude the district court erred in departing downward for exceptional r ehabilitation without giving prior notice to the parties it contemplated such a departure, and the error was not harmless. This being so, we need not reach other s entencing issues presented for review. We add there is nothing in the remedial portion of Booker which impugns the continued vitality of departures 4 or Rule 32(h). Booker “makes the Guidelines effectively advisory. It requires a sentencing cou rt to consider Guidelines ranges,-6-

but it permits the court to tailor the sentence in light of other statutory concerns as well.” 125 S.Ct. at 757 (citations omitted). T ailoring a sentence will no doubt occasionally involve, as it has in the past, depart ure from a standard guideline range. Such departures, as with those under the no w-excised § 3553(b)(1), are subject to Rule 32(h). Post- Booker , we will review a sentence under a standard of reasonableness. Id. at 765. It is to this standard that departures ar e now tied, not the strictures of the now-excised § 3553(b)(1).
Conclusion Accordingly, we VACATE the sentence and REMAND for resentencing consistent with this opinion and Booker

.

Entered by the Court: Terrence L. O’Brien United States Circuit Judge