United States v. Montoya-Cerda

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 1, 2002
• Docket: 01-41020
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-41020 Summary Calendar

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

ISMAEL MONTOYA-CERDA, also known as Miguel Angel Ramirez Ramirez

Defendant - Appellant

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B-01-CR-206-3 -------------------- June 27, 2002

Before KING, Chief Judge, and DAVIS and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Ismael Montoya-Cerda contends that the district court did

not provide him with adequate notice that it was considering an

upward departure from the sentencing guidelines under the rule in

Burns v. United States, 501 U.S. 129 (1991). Because Montoya

objected to the upward departure and indicated adequately that

the lack of notice was the basis for his objection, we review

this issue de novo. See United States v. Knight, 76 F.3d 86, 87

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 01-41020 -2-

(5th Cir. 1996); cf. United States v. Milton, 147 F.3d 414, 419

(5th Cir. 1998) (reviewing for plain error because the defendant

“did not object, move for a continuance, or in any way indicate

that the lack of notice of the basis for the upward departure had

prejudiced him at the sentencing hearing”).

Burns requires that the defendant be provided with

reasonable notice that the district court is considering an

upward departure. See 501 U.S. at 138-39. “The holding in Burns

was based upon the concern that ‘parties will address possible

sua sponte departure in a random and wasteful way by trying to

anticipate and negate every conceivable ground on which the

district court might choose to depart on its own initiative.’”

Milton, 147 F.3d at 418 (quoting Burns, 501 U.S. at 137).

The Government contends that the district court did provide

reasonable notice by stating at the sentencing hearing that it

was considering an upward departure and by giving the reasons for

the departure: that Montoya had created a hazardous situation by

transporting the aliens in an unventilated container with

hazardous materials and by threatening the mother of a three-

year-old child which was crying at the time the container was

passing through a border checkpoint. The Government’s argument

is without merit. Although these facts were reported in the

presentence report, the defense was not advised prior to the

sentencing hearing that they would be considered as a basis for

an upward departure. The district court’s notice was not No. 01-41020 -3-

reasonable because it required Montoya to anticipate and prepare

to address all possible bases for departure. See Milton, 147

F.3d at 418; see also United States v. Brooks, No. 00-10072, slip

op. at 7-8 (5th Cir. Dec. 13, 2000) (unpublished) (vacating and

remanding sentence because district court did not notify defense

prior to sentencing hearing that it was considering upward

departure and basis for departure). The sentence is vacated and

the case is remanded to the district court for further

proceedings.

VACATED AND REMANDED.