UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 99-4754

GERALD CECIL HOOKS,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
James C. Fox, District Judge.
(CR-99-39)

Submitted: June 27, 2000

Decided: September 14, 2000

Before NIEMEYER and MOTZ, Circuit Judges, and
HAMILTON, Senior Circuit Judge.

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Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

Edwin C. Walker, Acting Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Janice McKenzie Cole, United States Attorney, Anne M.
Hayes, Assistant United States Attorney, Dennis M. Duffy, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Gerald Cecil Hooks pled guilty to three counts of possession of
stolen mail, 18 U.S.C. §§ 2, 1708 (1994), five counts of producing
false identification documents, 18 U.S.C.A. §§ 2, 1028(a)(1) (West
2000), and one count of using false identification documents, 18
U.S.C.A. §§ 2, 1028(a)(7) (West 2000). Hooks was sentenced to a
term of 63 months imprisonment after the district court departed
upward from the guideline range on two grounds. On appeal, Hooks
challenges the court's one-level departure for possible but as-yet-
undiscovered losses to five banks. He contends that the district court
failed to give him adequate notice that it might depart on that ground.
We vacate the sentence and remand for resentencing.

Hooks stole mail from residential mailboxes and used information
from personal checks to create counterfeit checks and fraudulent driv-
er's licenses. He then negotiated the counterfeit checks at numerous
banks in North Carolina using the fraudulent driver's licenses as iden-
tification. After he was apprehended, Hooks entered into a plea agree-
ment which was conditionally accepted by the district court.
However, at Hooks' first sentencing hearing, the district court decided
that Hooks' plea agreement did not provide adequate punishment for
his conduct and rejected the plea agreement.* A few days later the
court reconsidered, decided to accept the plea, and gave notice that it
might depart upward, but did not identify any particular ground for
departure.

The government then filed a sentencing memorandum and motion
for upward departure, arguing that the applicable guideline, U.S. Sen-
_________________________________________________________________
*The plea agreement provided for the dismissal of Count One, a con-
spiracy charge, but neither Count One nor its dismissal affected the
guideline range.

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tencing Guidelines Manual § 2F1.1 (1998), adequately accounted for
the monetary losses resulting from Hooks' conduct, but did not
account for the non-monetary losses to individual victims whose mail
and identities had been stolen. The government mentioned in its
memorandum that there was a possibility that losses might have been
suffered by a few banks whose logos appeared in digital photographs
on Hooks' computer disks, although no losses had been reported by
those banks. The government did not request a departure on this
ground, and also stated in the memorandum that § 2F1.1 had
accounted for the monetary loss incurred by the institutional victims.

At the second sentencing hearing, the district court departed
upward by two levels because § 2F1.1 did not adequately account for
the non-monetary harm and emotional trauma to the individuals
whose mail and identification information were stolen. The court then
departed upward by one additional level to account for potential addi-
tional losses to the five banks whose logos were found on Hooks'
computer disks.

In Burns v. United States, 501 U.S. 129, 138 (1991), the Supreme
Court held that a sentencing court may not depart upward for a reason
not identified in the presentence report or in a government departure
motion as a possible ground for departure without first giving the
defendant notice that it is considering a departure on that specific
ground. See Burns, 501 U.S. at 138-39. See also United States v.
Maddox, 48 F.3d 791, 799 (4th Cir. 1995); United States v. Maxton,
940 F.2d 103, 106 (4th Cir. 1991). Hooks did not receive specific
notice that the district court might depart because of as-yet-
undiscovered losses to banks.

The government argues that Hooks was on notice that the district
court might depart on this ground because the court asked, at the first
sentencing hearing, about whether all the victims were known and
elicited testimony from Secret Service Agent Joseph Casper that new
victims were still being located. The government also points to the
district court's general notice that it might depart, and the govern-
ment's departure motion, which mentioned the difficulty to determine
the exact of amount of bank losses.

However, the focus of the government's departure motion was on
non-monetary harm to individual victims, and the district court gave

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no indication prior to departing that it was considering a departure
based on monetary losses to banks. Burns requires that the defendant
have notice of the specific ground for departure so that he may pre-
pare to contest it. See United States v. Mangone , 105 F.3d 29, 35 (1st
Cir. 1997); United States v. Valentine, 21 F.3d 395, 398 (11th Cir.
1994).

The government also argues that, even if Hooks did not have the
notice required under Burns, he failed to preserve the issue for appeal
by not objecting, and that the district court's failure to comply with
Burns was not plain error. See United States v. Olano, 507 U.S. 725,
731-32 (1993) ("plain" error must be obvious, affect substantial
rights, and require coercion to protect fairness, integrity, and public
reputation of judicial proceedings). Here, the district court clearly
deviated from the rule set out in Burns to safeguard the defendant's
right under Fed. R. Crim. P. 32, to comment on matters relating to the
sentence. Moreover, the additional departure increased the upper limit
of Hooks' guideline range from fifty-seven months to sixty-three
months and the court imposed a sentence at the top of the guideline
range. Therefore, the error was plain and affected Hooks' substantial
rights. See Mangone, 105 F.3d at 35-36. Consequently, we find that
resentencing is required.

We therefore vacate the sentence and remand for resentencing. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.

VACATED AND REMANDED

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