                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-4903


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

EDUARDO RICO PACHECO, a/k/a Juan Silverio Cruz,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.         Richard L.
Voorhees, District Judge. (5:11-cr-00071-RLV-DCK-1)


Submitted:   May 30, 2013                  Decided:   June 4, 2013


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


Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.


D.   Baker  McIntyre,   III,  Charlotte, North   Carolina,  for
Appellant. Amy Elizabeth Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Eduardo      Rico    Pacheco       pleaded    guilty    pursuant        to   a

written plea agreement to illegally reentering the United States

after having been removed based upon a felony conviction, in

violation of 8 U.S.C. § 1326(a), (b)(1) (2006).                        The district

court   calculated       Pacheco’s      Guidelines       range     under    the     U.S.

Sentencing Guidelines Manual (2011) at ten to sixteen months’

imprisonment.       The court stated that an upward departure was

warranted in light of Pacheco’s repeated illegal reentries and

risk of recidivism.         Neither this ground nor any other ground

for   departure    was    mentioned     in      the   presentence      investigation

report or prior to the sentencing hearing.                    After announcing its

decision    to    depart,       the   court     sentenced      Pacheco      to    thirty

months’ imprisonment.

            On    appeal,   counsel      has     filed    a    brief     pursuant        to

Anders v. California, 386 U.S. 738 (1967), certifying that there

are   no   meritorious      issues      for     appeal,    but     questioning       the

district    court’s      compliance      with      Federal     Rule    of        Criminal

Procedure 11 and the reasonableness of the sentence.                             Pacheco

was advised of his right to file a pro se supplemental brief,

but has not done so.            The Government declined to file a brief.

We affirm Pacheco’s conviction, vacate his sentence, and remand

for resentencing.



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           Because Pacheco did not move in the district court to

withdraw his guilty plea, we review the Rule 11 hearing for

plain error.       United States v. Martinez, 277 F.3d 517, 525 (4th

Cir.   2002).       To   prevail     under      this   standard,          Pacheco   must

establish that an error occurred, was plain, and affected his

substantial rights.         United States v. Massenburg, 564 F.3d 337,

342-43 (4th Cir. 2009).            Our review of the record establishes

that the district court substantially complied with Rule 11’s

requirements,      ensuring    that    Pacheco’s          plea    was     knowing    and

voluntary.      We therefore affirm Pacheco’s conviction.

           We      review   Pacheco’s          sentence    under      a     deferential

abuse-of-discretion standard.              Gall v. United States, 552 U.S.

38, 51 (2007).        This review requires consideration of both the

procedural and substantive reasonableness of the sentence.                          Id.;

United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010).                           After

determining whether the district court correctly calculated the

advisory   Guidelines       range,    we   must     decide       whether     the    court

considered the 18 U.S.C. § 3553(a) (2006) factors, analyzed the

arguments presented by the parties, and sufficiently explained

the selected sentence.         Lynn, 592 F.3d at 575-76; United States

v. Carter, 564 F.3d 325, 330 (4th Cir. 2009).                             Once we have

determined that the sentence is free of procedural error, we

consider     the    substantive       reasonableness             of   the    sentence,



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“tak[ing]       into    account        the      totality     of    the     circumstances.”

Gall, 552 U.S. at 51; Lynn, 592 F.3d at 575.

               We     conclude       that        the    district         court    committed

procedural error in failing to provide notice to the parties

that it was contemplating an upward departure.                             Federal Rule of

Criminal Procedure 32(h) requires the district court to provide

“reasonable         notice”    of   an     intent      to    depart   on    a    ground      not

previously identified by the presentence investigation report or

one of the parties and to specify the ground of departure.                                   Fed.

R. Crim. P. 32(h).               Because Pacheco failed to object to the

district court’s failure to provide notice, we review the upward

departure for plain error.                See United States v. Olano, 507 U.S.

725, 732 (1993).          Pacheco must therefore establish that an error

occurred,       was    plain,       and      affected       his    substantial       rights.

Massenburg, 564 F.3d at 342-43.

               We conclude that an error occurred because the court

denied    the       parties    an    opportunity        to    comment      by    failing      to

inform them that it was contemplating an upward departure.                                   The

error    was    also     plain      because      the    decision      to    depart      upward

without    providing          notice      to    the    parties     violated       the    clear

direction of Rule 32(h).               Finally, because the error resulted in

an   increased        sentence,     nearly       double      the   upper     limit      of   the

Guidelines      range,     Pacheco’s           substantial     rights      were   affected.

United States v. Spring, 305 F.3d 276, 282-83 (4th Cir. 2002).

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Accordingly, we vacate Pacheco’s sentence and remand for further

proceedings. ∗

             In accordance with Anders, we have reviewed the entire

record in this case and have found no other meritorious issues.

We therefore affirm Pacheco’s conviction, vacate his sentence,

and   remand    for    resentencing     to   allow     the   district     court   to

provide the required notice of its intent to consider an upward

departure.      This court requires that counsel inform Pacheco, in

writing,   of    the   right     to   petition   the    Supreme    Court    of    the

United States for further review.                If Pacheco requests that a

petition be filed, but counsel believes that such a petition

would be frivolous, then counsel may move in this court for

leave to withdraw from representation.                  Counsel’s motion must

state that a copy thereof was served on Pacheco.                        We dispense

with oral argument because the facts and legal contentions are

adequately      presented   in    the   materials      before    this    court    and

argument would not aid the decisional process.


                                                                AFFIRMED IN PART,
                                                                 VACATED IN PART,
                                                                     AND REMANDED




      ∗
       By this disposition we express no opinion as to                            the
appropriateness of a departure or variance on remand if                           the
required procedures are observed.



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