*

 This order and judgment is not binding precedent except under the doctrines of

law of the case, res judicata and 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, this 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). The case is

therefore ordered submitted without oral argument.

On March 10, 2004, Jose Santos Monroy pled guilty to illegal re-entry after

deportation subsequent to a conviction for an aggravated felony in violation of 8
1

 The statute allows for imprisonment for no more than twenty years. See 18

U.S.C. § 1326(b)(2).

2

 The PIR and the eventual sentence applied the November 2003 edition of the

United States Sentencing Guidelines. See United 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 sentenced 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 preparation of a Presentence

Investigation Report (PIR). The PIR calculated a total offense level of 21 and a

criminal history category of V, resulting in a guideline 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 excised by United States v. Booker, --

U.S. -- , 125 S.Ct. 738, 756 (2005)), on two grounds: 1) the criminal history

category assigned to him in the PIR substantially over-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 category 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 Blakely to 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 identified in the PIR, specifically

advanced by Monroy, noticed to either party or argued at sentencing. The

consequent guideline range was 46 to 57 months. The court sentenced Monroy at

the low end of the range.

Discussion

The Government appeals each of the downward departures ordered by the

district court.3

 Inter alia, the Government challenges the court’s failure to give

reasonable notice it was contemplating a downward departure for exceptional

rehabilitation, a departure awarded only at the conclusion of the sentencing

hearing.

We first consider the appropriate standard of review to apply to the

Government’s claim. The Government did not object to the court’s award of a

downward departure for exceptional rehabilitation and raises its objection for the
-4-

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

error. See FED. R. CRIM. P. 52(b). However, where a “complete lack of notice

made it impossible for the parties to anticipate the 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 FED. R. CRIM. 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 contemplation of same), the Court

held:

[B]efore a district court can depart upward on a ground not identified

as a ground for upward departure either in the presentence report or

in a prehearing submission by the Government, Rule 32 requires that

the district court give the parties reasonable notice 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 Government enjoy equal procedural

entitlements.” Id. at 135 n.4. With the Burns decision in mind, Rule 32 was

amended in 2002: 
4 Booker is 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's requirement.” Booker, 125 S.Ct. at 764 (internal

quotation marks, ellipsis and alteration omitted).

-5-

Notice of Possible Departure from Sentencing Guidelines. 

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). 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 parties that it

contemplated doing so, imposed sex offender registration requirement as

condition of supervised release). Based on the foregoing, we conclude the district

court erred in departing downward for exceptional rehabilitation 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 sentencing issues presented for

review. 

We add there is nothing in the remedial portion of Booker which impugns

the continued vitality of departures4

 or Rule 32(h). Booker “makes the Guidelines

effectively advisory. It requires a sentencing court 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). Tailoring a sentence will no doubt

occasionally involve, as it has in the past, departure from a standard guideline

range. Such departures, as with those under the now-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 are 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