United States v. Serafin Hernandez-Garcia
UNITED STATES of America, Plaintiff-Appellee, v. Serafin HERNANDEZ-GARCIA, Defendant-Appellant
- Proceeding
- appeal
- Trial court
- United States District Court for the Southern District of California
- Trial judge
- Gordon Thompson (district judge)
- Outcome
- vacated — VACATED and REMANDED.
- Area
- criminal
- Panel
- Barry G. Silverman (author), Smith, Consuelo M. Callahan
Analysis
No analysis yet. When one exists it is a model's reading of this opinion — the rulings it reviewed, whether it agrees with the court, and the authorities it checked — shown beside the court's own disposition, never in place of it. How analyses are made.
Opinion
FILED NOT FOR PUBLICATION OCT 05 2010
MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50549 Plaintiff - Appellee, D.C. No. 3:09-cr-01802-GT v. MEMORANDUM * SERAFIN HERNANDEZ-GARCIA, Defendant - Appellant.
Appeal from the United States District Court for the Southern District of California Gordon Thompson, District Judge, Presiding Submitted September 13, 2010 ** Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.
Serafin Hernandez-Garcia appeals from the 33-month sentence imposed following his guilty-plea conviction for being a deported alien found in the United States, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C.
§ 1291, and we vacate and remand.
* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Hernandez-Garcia contends the district court did not comply with Federal Rule of Criminal Procedure 32(h)’s requirement that it provide notice of its intent to depart upward from the applicable Sentencing Guidelines range. We agree.
Neither the presentence report nor the Government’s pretrial submission identified the district court’s grounds for departure, and the district court itself did not provide notice by the outset of the sentencing hearing of the factual and legal basis supporting its intent to depart. See Fed. R. Crim. P. 32(h) (notice must specify the ground on which the departure is based); United States v. Evans- Martinez, 530 F.3d 1164, 1168 (9th Cir. 2008) (explaining that parties must receive notice of the basis of the departure so the issues are “fully aired”); United States v. Hernandez, 251 F.3d 1247, 1251 n.4 (9th Cir.) (“district courts must in any case provide notice of a potential departure not later than the outset of the sentencing hearing”), amended by 280 F.3d 1216 (9th Cir. 2001). We vacate and remand for resentencing because we “cannot be confident that the issues which impacted sentencing were thoroughly tested as intended under Rule 32(h).” See Evans-Martinez, 530 F.3d at 1168.
In light of our disposition of the Rule 32 issue, we do not address Hernandez-Garcia’s remaining contentions.
VACATED and REMANDED.
2 09-50549