United States v. Deane

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 22, 2003
• Docket: 02-21013
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS May 21, 2003

FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 02-21013 c/w No. 02-21014 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RICHARD MASON DEANE,

Defendant-Appellant.

-------------------- Appeals from the United States District Court for the Southern District of Texas (H-02-CR-280-All) --------------------

Before DAVIS, WIENER, AND EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Richard Deane appeals the sentence imposed

following his guilty-plea convictions for 52 counts of conspiracy,

mail fraud, wire fraud, and money laundering and for failure to

appear for sentencing. Deane argues that, in violation of FED. R.

CRIM. P. 32 and Burns v. United States, 501 U.S. 129 (1991), the

district court failed to give him notice prior to granting an

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. upward departure on a ground that was not specified in the

government’s motion for upward departure.

To comply with Rule 32, a district court must give a defendant

reasonable notice of its intention to depart upward on a ground not

identified in either the presentence report (PSR) or a prehearing

submission by the government. See Burns, 501 U.S. at 138-39;

United States v. Nevels, 160 F.3d 226, 231 (5th Cir. 1998). “The

purpose behind notice of upward departure is to give effect to the

Rule 32 requirement that the parties be given ‘an opportunity to

comment upon the probation officer's determination and on other

matters relating to the appropriate sentence.’” United States v.

Milton, 147 F.3d 414, 421 (5th Cir. 1998)(quoting Burns, 501 U.S.

at 135). Because Deane objected to the lack of notice in the

district court, review in this court is de novo. See United States

v. Knight, 76 F.3d 86, 87 (5th Cir. 1996).

The record reflects that at the sentencing hearing, the court

afforded Deane two opportunities to respond to the proposed upward

departure for placing the proceeds of the fraudulent scheme in

investments outside of the United States, thereby preventing

restitution to Deane’s victims. See United States v. George, 911

F.2d 1028, 1029-30 (5th Cir. 1990). First, the court offered to

postpone the sentencing hearing for seven days so that Deane could

produce documentation to refute the grounds for the departure, but

Deane declined the offer. Second, the court suggested to Deane

that a PSR could be prepared with respect to the merits of the

2 departure, but Deane’s counsel informed the court that he would

instruct Deane not to cooperate with any such investigation. Deane

fails to identify how additional notice prior to the sentencing

hearing would have assisted him or, alternatively, how the notice

provided at the sentencing hearing prevented him from adequately

responding to the merits of the departure. See George, 911 F.2d at

1029-30. Accordingly, the judgment of the district court is

AFFIRMED.