                                                                           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                            NOT FOR PUBLICATION                             OCT 05 2010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.


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