FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 05-10280 Plaintiff-Appellee,

D.C. No.

v.  CR-03-00187-DAE

JESUS NORBERTO EVANS-MARTINEZ,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the District of Hawaii

David A. Ezra, District Judge, Presiding

Argued and Submitted

April 7, 2006—San Francisco, California

Filed July 2, 2008

Before: Robert R. Beezer and Raymond C. Fisher,

Circuit Judges, and Robert J. Timlin,* Senior District Judge.

Opinion by Judge Beezer

*The Honorable Robert J. Timlin, Senior District Judge for the United

States District Court for the Central District of California, sitting by designation. 

8041
COUNSEL

Peter C. Wolff, Jr., Federal Public Defender and Alexander

Silvert, First Assistant Federal Public Defender, Honolulu,

Hawaii, for the defendant-appellant. 

Edward J. Kubo, Jr., United States Attorney and Lawrence L.

Tong, Assistant United States Attorney, Honolulu, Hawaii,

for the plaintiff-appellee.

UNITED STATES v. EVANS-MARTINEZ 8043
OPINION

BEEZER, Circuit Judge: 

Defendant Jesus Evans-Martinez was sentenced to 15 years

imprisonment after pleading guilty to sexual abuse of a minor,

sexual exploitation of minors and witness tampering. EvansMartinez timely appeals his sentence on the ground that the

district court failed to provide adequate notice of its intent to

sentence him above the term suggested by the Sentencing

Guidelines. Fed. R. Crim. P. 32(h) requires that a district

court provide notice of the potential it will depart from the

Sentencing Guidelines range. We have not yet had occasion

to decide whether this requirement survives United States v.

Booker, 543 U.S. 220 (2005). 

We hold that it does. We vacate the sentence and remand

for resentencing. 

I

In November 2002, the FBI began investigating EvansMartinez for suspected participation in activities related to

child pornography on the internet. At the time, he was an

active duty member of the United States Army living in

Hawaii with his wife and three children, two daughters and a

son. As a result of the investigation, the FBI identified EvansMartinez as the owner of an e-mail account responsible for

sending hundreds of e-mails, some of which related to child

pornography and some of which depicted children in states of

undress or engaged in sexual conduct. Some of these e-mails

also advertised the creation of a Yahoo! group that would

contain “r@ygold,” a term commonly understood to refer to

child pornography. The e-mails stated that child pornography

would be posted to the group, and members could display,

view and download images and files. The e-mail also contained a movie attachment that depicted a minor engaged in

sexual conduct. 

8044 UNITED STATES v. EVANS-MARTINEZ
The FBI obtained a search warrant for Evans-Martinez’s

house and seized various pieces of computer equipment.

Agents also found cameras concealed in his daughters’ bedroom and in the bathroom. Evans-Martinez subsequently met

with agents and, following a waiver of his constitutional

rights, gave a statement admitting to his participation in child

pornography-related activities. He also admitted to taking

photographs of his older daughter’s breasts and genitals while

she was sleeping, as well as taking photographs of himself

touching his daughter’s genitals while she was sleeping.

Evans-Martinez was arrested and, following his arrest, he

asked his wife to destroy various items still at their house,

including additional computer equipment and a physical item

used in the sexual abuse of his daughter. His wife complied.

Evans-Martinez was indicted on charges of (1) sexual

abuse of a minor in violation of § 18 U.S.C. § 2243(a) for the

abuse of his oldest daughter; (2) sexual exploitation of minors

in violation of 18 U.S.C. § 2251(c) for sending the e-mails

advertising the creation of the Yahoo! group; and (3) witness

tampering in violation of 18 U.S.C. § 1512(b) for asking his

wife to destroy the potential evidence relevant to the child

pornography investigation. 

Evans-Martinez entered into a plea agreement in which he

pleaded guilty to the three charges in return for the Government’s agreement not to seek additional charges against him.

The plea agreement described the maximum penalties available for his crimes, but memorialized stipulations the parties

reached as to sentence calculation under the Sentencing

Guidelines. Specifically, the plea agreement stated that the

Government expected to move for a downward departure on

the basis of Evans-Martinez’s cooperation. It also stated that

Evans-Martinez understood the district court would be bound

by the Sentencing Guidelines, but that the district court could

determine facts relevant to sentencing and would not be

bound by any stipulations entered into by the parties. EvansMartinez limited his right to appeal his sentence, but explicUNITED STATES v. EVANS-MARTINEZ 8045
itly reserved his right to appeal any upward departure from

the Guideline sentence. 

The district court formally accepted the guilty pleas and a

presentence report was prepared, which calculated a total

offense level of 19, a criminal history category of I and, on

the basis of a statutory minimum of 10 years for the second

count, a Guideline sentence of 10 years. 

After the parties entered into the plea agreement and the

initial presentence report was prepared, the Supreme Court

decided United States v. Booker, 543 U.S. 220 (2005), which

rendered the Sentencing Guidelines advisory in order to comply with the Sixth Amendment. The presentence report was

amended to acknowledge that, post-Booker, the district court

was required to consider, but no longer bound by, the Guidelines. Evans-Martinez did not object to the amended presentence report. 

At sentencing, the Government moved for a downward

departure on the basis of Evans-Martinez’s cooperation. The

Government noted that Evans-Martinez supplied law enforcement agents with his e-mail password and, as a result, seven

other sexual predators in seven cities were identified, tried

and convicted. The district court accepted the plea agreement,

adopted the conclusions of the presentence report as amended

and “granted” the Government’s motion for a downward

departure. The court determined, however, that the motion

only “released” it from its obligation to impose a sentence at

or above the mandatory minimum sentence of 10 years and

that it was still able to sentence Evans-Martinez up to the statutory maximum of 20 years. The district court commented on

the disturbing nature of the case and summarized the facts as

they were related in the presentence report. Taking into

account Evans-Martinez’s cooperation, the court then sentenced him to a term of 15 years and a period of supervised

release. 

8046 UNITED STATES v. EVANS-MARTINEZ
II

Pre-Booker, we reviewed the adequacy of a district court’s

notice of its intent to upwardly depart de novo. United States

v. Hernandez, 251 F.3d 1247, 1250 (9th Cir. 2001). Because

Evans-Martinez failed to object at sentencing to the adequacy

of notice his claim is reviewed for plain error. Id.

1

“Plain error is ‘(1) error, (2) that is plain, and (3) that

affects substantial rights.’ ” United States v. Ameline, 409

F.3d 1073, 1078 (9th Cir. 2005) (en banc) (quoting United

States v. Cotton, 535 U.S. 625, 631 (2002)). If the failure to

provide notice is plain error, we will grant relief if it “seriously affects the fairness, integrity, or public reputation of

judicial proceedings.” Id. (quoting Cotton, 535 U.S. at 631).

[1] In Burns v. United States, 501 U.S. 129, 138 (1991), the

Supreme Court holds that “before the 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.” The Supreme Court further holds that

“[t]his notice must specifically identify the ground on which

the district court is contemplating an upward departure.” Id.

1We reject Evans-Martinez’s argument that because he expressly

retained his right to appeal an upward departure in the plea agreement he

did not forfeit the error and plain error review does not apply. EvansMartinez confuses forfeiture and waiver. “Whereas forfeiture is the failure

to make the timely assertion of a right, waiver is the ‘intentional relinquishment or abandonment of a known right.’ ” United States v. Olano,

507 U.S. 725, 733 (1993) (quoting Johnson v. Zerbst, 304 U.S. 458, 464

(1938)). By reserving his right to appeal upward departures in the plea

agreement, Evans-Martinez insulated himself from a claim of waiver. To

avoid forfeiture, however, Evans-Martinez would have had to assert the

right in a timely manner, which is, at the sentencing hearing. His failure

to do so was a forfeiture and review is for plain error. See Hernandez, 251

F.3d at 1250; see also United States v. Garcia, 323 F.3d 1161, 1165 (9th

Cir. 2003). 

UNITED STATES v. EVANS-MARTINEZ 8047
at 138-39. The Court’s decision in Burns was incorporated

into the Federal Rules of Criminal Procedure in the form of

Rule 32(h) by amendment in 2002. FED. R. CRIM. P. 32(h)

advisory committee’s note. Rule 32(h) requires that “[b]efore

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.” Rule 32(h) further requires that the notice “specify any ground on which the court is contemplating a departure.” 

[2] Although we have not previously held that the notice

requirement of Rule 32(h) survives Booker, the Government

conceded at oral argument that the district court’s failure to

provide notice constitutes plain error. We hold Rule 32(h)

requires that a district court provide notice of its intent to

depart from the applicable sentencing range suggested by the

Guidelines post-Booker, as it did pre-Booker.

2 Accord United

States v. Dozier, 444 F.3d 1215 (10th Cir. 2006). 

[3] The district court’s plain error in failing to provide

notice of its intent to depart from the Guideline range “seriously affect[ed] the fairness, integrity, or public reputation” of

the sentencing proceeding. See Ameline, 409 F.3d at 1078. In

Burns, the Supreme Court justifies the notice requirement by

explaining that Rule 32 “contemplates full adversary testing

of the issues relevant to a Guideline sentence[.]” 501 U.S. at

135. Because Rule 32 affords the defendant the right to com2

In United States v. Garcia, 323 F.3d at 1164, we hold that, when sentencing a defendant following the revocation of probation, a court need not

provide notice before imposing a sentence above the range suggested by

the non-binding policy statements of Chapter 7. Garcia dealt explicitly

with a sentencing decision pursuant to Chapter 7 while the claim here

involves a sentencing decision pursuant to § 3553(a). Additionally, the

district court in Garcia determined that the defendant had, in fact, received

adequate notice. Id. at 1165. As such, Garcia has limited applicability to

the present question. 

8048 UNITED STATES v. EVANS-MARTINEZ
ment on an upward departure, the Court reasons that it is only

appropriate that a defendant be notified the district court is

considering such a departure. Id. at 135-36. Otherwise,

defense counsel, “reluctant to suggest such a possibility[,]”

might not comment on potential grounds for an upward departure and “a critical sentencing determination [would] go

untested by the adversarial process[.]” Id. at 137. 

[4] This rationale is unaffected by Booker’s mandate that

the Guidelines be applied in an advisory fashion. Post-Booker,

the district court must correctly calculate the applicable range,

which serves as a “starting point and the initial benchmark”

in sentencing. United States v. Carty, 520 F.3d 984, 991 (9th

Cir. 2008) (en banc) (quoting Kimbrough v. United States,

128 S. Ct. 558, 574 (2007)). The district court then has the

discretion to sentence both above and below the range suggested by the Guidelines. United States v. Cantrell, 433 F.3d

1269, 1280 (9th Cir. 2006). Parties must receive notice the

court is contemplating a departure to ensure that issues with

the potential to impact sentencing are fully aired. EvansMartinez did not receive explicit notice that the district court

was contemplating departing upward from the 10 year term

suggested by the Guidelines; in fact he expected the exact

opposite in light of the Government’s statement in the plea

agreement that it intended to move for a downward departure.

We cannot be confident that the issues which impacted sentencing were thoroughly tested as intended under Rule 32(h).

Accordingly, we remand for resentencing.3

[5] At resentencing, the district court should apply the

Guidelines in a discretionary manner as directed by the

Supreme Court in Booker. See 543 U.S. at 261. We reject

Evans-Martinez’s argument that the district court should treat

the Sentencing Guidelines as mandatory on the basis of the

3Because we vacate and remand for resentencing, we need not consider

Evans-Martinez’s alternative argument that his sentence was unreasonable

under Booker. 

UNITED STATES v. EVANS-MARTINEZ 8049
plea agreement. Although the parties entered into the plea

agreement pre-Booker and the agreement memorialized the

then-existing state of the law that the Guidelines would apply,

the district court sentenced Evans-Martinez post-Booker. The

presentence report was amended to reflect the change in law

Booker effected and the district court treated the Guidelines

as advisory during sentencing. Evans-Martinez failed to

object to Booker’s applicability either before or at the time of

sentencing and we decline to grant the provision of the plea

agreement a significance now that it did not enjoy then. The

district court should sentence Evans-Martinez in a manner

consistent with this opinion and Booker. See United States v.

Mix, 442 F.3d 1191, 1195 (9th Cir. 2006). 

III

This conclusion is consistent with the Supreme Court’s

recent decision in Irizarry v. United States, No. 06-7517

(2008). Irizarry holds that Rule 32(h) does not require a sentencing judge to provide notice before imposing a sentence at

“variance” with the Federal Sentencing Guidelines. Slip op.

at 8. In reaching that conclusion, the Supreme Court emphasizes the distinction between a variance and a departure.

Because Rule 32(h) requires notice when the district court is

contemplating a “departure,” “the rule does not apply to

§ 3553 variances by its terms.” Id. at 6. Rather, “ ‘[d]eparture’

is a term of art under the Guidelines and refers only to nonGuidelines sentences imposed under the framework set out in

the Guidelines.” Id. Irizarry does not control the result in this

case because the district court here did not sentence at variance from the recommended Guidelines range based on Section 3553(a) factors, but departed as the term was used when

Rule 32(h) was promulgated. By its own terms, the Irizarry

holding does not extend to sentencing departures under the

Guidelines. 

In light of Irizarry, it is arguable that the due process concerns that led to the promulgation of Rule 32(h) are now

8050 UNITED STATES v. EVANS-MARTINEZ
equally inapplicable to sentencing departures. We decline to

reach that conclusion. We understand the Supreme Court’s

distinction between a variance and a departure to be a meaningful one. Further, the Irizarry Court implies that Rule 32(h)

continues to apply with respect to departures. See id. at 8

(“The fact that Rule 32(h) remains in effect today does not

justify extending its protections to variances . . . .” ). The

Supreme Court gives no indication that it disapproves of the

continued application of Rule 32(h) to departures in the postBooker era.

IV

The district court failed to provide notice of its intent to

depart from the sentencing range suggested by the Sentencing

Guidelines as required by Rule 32(h). 

We VACATE the sentence and REMAND for resentencing

consistent with this opinion. 

UNITED STATES v. EVANS-MARTINEZ 8051