                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                  No. 07-30324
               Plaintiff-Appellant,
               v.                            D.C. No.
                                          CR-06-00064-DWM
BRETT HAHN,
                                              OPINION
              Defendant-Appellee.
                                      
      Appeal from the United States District Court
              for the District of Montana
    Donald W. Molloy, Chief District Judge, Presiding

                Argued and Submitted
         November 18, 2008—Seattle, Washington

                   Filed March 4, 2009

 Before: Alex Kozinski, Chief Judge, Betty B. Fletcher and
          Johnnie B. Rawlinson, Circuit Judges.

                   Per Curiam Opinion;
           Concurrence by Chief Judge Kozinski




                           2701
                   UNITED STATES v. HAHN                2703




                        COUNSEL

William W. Mercer (argued), Kris A. McLean, U.S. Attor-
ney’s Office, Billings, Montana, for the plaintiff-appellant.

Ryan R. Shaffer, Shaffer Law Office, P.C., Missoula, Mon-
tana, for the defendant-appellee.
2704                 UNITED STATES v. HAHN
                           OPINION

PER CURIAM:

   On April 13, 2007, Brett Hahn pled guilty to one count of
felon in possession of a firearm, in violation of 18 U.S.C.
§ 922(g). When he entered his guilty plea, Hahn was already
serving a term of imprisonment imposed by a Montana court
for state-law criminal endangerment and intimidation convic-
tions arising out of the same set of events as his federal fire-
arm offense.

   Hahn’s presentence report (“PSR”) recommended a sen-
tencing range of 37 to 46 months. The PSR identified no fac-
tors that would warrant departure from the term suggested by
the Sentencing Guidelines, and it was silent regarding
whether the sentence should run concurrently or consecu-
tively to Hahn’s state-law sentence. Neither party objected to
the PSR’s Guidelines calculation, but both Hahn and the gov-
ernment filed sentencing memoranda that discussed whether
the district court should impose Hahn’s federal sentence to
run concurrently or consecutively to his state-law sentence.

   In his memorandum, Hahn argued that U.S.S.G. § 5G1.3(b)
required the district court to impose a federal sentence to run
concurrently with his state-law sentence. Section 5G1.3(b)
applies when the defendant is subject to an undischarged term
of imprisonment and the prior offense (i) is relevant conduct
to the instant offense and (ii) has resulted in an increase in the
offense level for the instant offense. See U.S.S.G. § 5G1.3(b);
Application Note 2(A). Hahn pointed out that he was subject
to an undischarged term of imprisonment for his state-law
offenses, that the state law offenses were relevant conduct to
his federal offense under U.S.S.G. § 1B1.3(a)(1), and that the
state-law offenses resulted in a four-point increase in his
offense level under U.S.S.G. § 2K1.2(b)(6). As a result, Hahn
argued, § 5G1.3(b) required the district court to adjust his sen-
tence by 902 days for the time he had already served and to
                         UNITED STATES v. HAHN                           2705
impose a term of imprisonment to run concurrently with his
undischarged state-law sentence. His argument on this point
comprises nearly half of his memorandum.

   In its response, the government urged the district court to
exercise its discretion under 18 U.S.C. § 35841 to impose con-
secutive sentences because a concurrent sentence would not
satisfy the sentencing factors in 18 U.S.C. § 3553(a).2 The
government pointed out that adjusting Hahn’s sentence by
902 days and imposing a concurrent sentence would result in
“essentially no period of federal incarceration.” The govern-
ment argued that such a sentence would not satisfy § 3553(a)
in light of Hahn’s extensive criminal history, the violent
nature of the underlying offenses, and the need for the sen-
tence to deter future criminal conduct.

   The district court sentenced Hahn on July 25, 2007. The
district court first held that U.S.S.G. § 5G1.3(b) applied, and
that therefore a decision to impose a consecutive sentence
rather than a concurrent sentence would be a departure requir-
ing notice pursuant to Federal Rule of Criminal Procedure
32(h) and United States v. Evans-Martinez, 530 F.3d 1164,
1168 (9th Cir. 2008). Although the district court initially
agreed that there was adequate notice,3 it ultimately concluded
   1
     Section 3584 states that where a defendant is subject to an undis-
charged term of imprisonment the court shall consider the 18 U.S.C.
§ 3553(a) factors in determining whether the sentences should run concur-
rently or consecutively. 18 U.S.C. § 3584.
   2
     Section 3553(a) requires the district court to consider: “(1) the nature
and circumstances of the offense and the history and characteristics of the
defendant; (2) the need for the sentence imposed; (3) the kinds of sen-
tences available; (4) the kinds of sentences and the sentencing range estab-
lished by the Sentencing Guidelines; (5) pertinent policy statements issued
by the Sentencing Commission; (6) the need to avoid unwarranted sen-
tencing disparities among defendants who have similar criminal records
and have been found guilty of similar conduct; and (7) the need to provide
restitution to victims.” United States v. Fifield, 432 F.3d 1056, 1064 n.8
(9th Cir. 2005).
   3
     “I think you’re right, everybody’s briefed it, so to argue that there’s no
notice is sort of a form over substance.”
2706                UNITED STATES v. HAHN
that Rule 32(h) is satisfied only if the court itself gives
advance notice of its intent to depart. The district court found,
therefore, that it was bound to impose a concurrent sentence
because it did not state that it was considering a consecutive
sentence before the hearing, even though it thought that a con-
secutive sentence would be more appropriate. The district
court expressed its concern that deterrence would be compro-
mised by a concurrent sentence because Hahn would experi-
ence no additional punishment and other prisoners would
want to know how he “got away with this one.” The district
court also found that Hahn was a “risk to the public” and that
there was a “high probability” that he would continue the
criminal career he began at the age of twelve. Even though it
did not think the sentence was “harsh enough”, the district
court imposed a high-end sentence of 46 months reduced by
the 902 days Hahn had already served for his state-law
offenses, to run concurrently with Hahn’s state-law sentence.

   The government appeals the district court’s decision to
impose Hahn’s federal sentence to run concurrently with his
undischarged state sentence. The government argues that the
district court erred when it found inadequate notice because
both parties briefed the issue of whether the court should
impose a concurrent or consecutive sentence in their sentenc-
ing memoranda. We agree. We vacate Hahn’s sentence and
remand his case to the district court for resentencing.

   We have jurisdiction over this appeal pursuant to 28 U.S.C.
§ 1291 and 18 U.S.C. § 3742(b). We review the adequacy of
notice under Rule 32(h) de novo. Evans-Martinez, 530 F.3d
at 1167 (citing United States v. Hernandez, 251 F.3d 1247,
1250 (9th Cir. 2001)).

  Federal Rule of Criminal Procedure 32(h) states:

    Before the court may depart from the applicable sen-
    tencing range on a ground not identified for depar-
    ture either in the presentence report or in a party’s
                    UNITED STATES v. HAHN                    2707
    prehearing submission, the court must give the par-
    ties reasonable notice that it is contemplating such a
    departure. The notice must specify any ground on
    which the court is contemplating a departure.

   [1] Rule 32(h)’s notice requirement survived United States
v. Booker, 543 U.S. 220 (2005), which rendered the Guide-
lines advisory. Evans-Martinez, 530 F.3d at 1168. A district
court’s decision to impose a consecutive sentence where
§ 5G1.3(b) would otherwise require a concurrent sentence
constitutes a departure from the Guidelines requiring notice
under Rule 32(h). See United States v. Fifield, 432 F.3d 1056,
1061 (9th Cir. 2005).

   The parties do not dispute that this case falls under
§ 5G1.3(b), that a decision to impose consecutive sentences
where § 5G1.3(b) applies is a departure, and that as a result
Rule 32(h) required that the parties have notice before the dis-
trict court could impose a consecutive sentence. The parties
disagree, however, about whether the arguments advanced in
their sentencing memoranda provided adequate notice such
that the district court could impose a consecutive sentence
without running afoul of Evans-Martinez.

   [2] The purpose of Rule 32 is to provide “full adversary
testing of the issues relevant to a Guideline sentence[.]”
Evans-Martinez, 530 F.3d at 1168 (quoting Burns v. United
States, 501 U.S. 129, 135 (1991)). The parties must have
notice “to ensure that issues with the potential to impact sen-
tencing are fully aired.” Id. Under the plain language of Rule
32(h), the PSR and the parties’ own prehearing submissions
can provide adequate notice of a departure. The district court
itself is required to give notice of its intent to depart only
when the PSR and the parties’ prehearing submissions fail to
identify the ground for departure. Fed. R. Crim. P. 32(h).

  [3] Applying this principle to the current case, we find that
because the parties’ own sentencing memoranda discussed the
2708                 UNITED STATES v. HAHN
propriety of concurrent or consecutive sentences, Hahn cannot
claim that he had no notice that the district court might con-
sider imposing a consecutive sentence. Hahn raised the issue
of whether the district court should impose a concurrent or
consecutive sentence in his own memorandum. The govern-
ment’s memorandum responded to Hahn’s argument that
§ 5G1.3(b) requires concurrent sentences and argued that a
consecutive sentence would be more appropriate under 18
U.S.C. §§ 3584 and 3553. The parties further discussed the
issue at the sentencing hearing. The issue was thus fully tested
in the parties’ memoranda and in the sentencing hearing. See
Evans-Martinez, 530 F.3d at 1168. The district court therefore
erred when it found that it was bound to impose a concurrent
sentence because of its failure to give adequate Rule 32(h)
notice.

                        CONCLUSION

   The district court erred when it found that the parties’ pre-
hearing submissions alone were inadequate to satisfy Rule
32(h). The parties’ sentencing memoranda, which discussed
whether consecutive or concurrent sentences were appropri-
ate, provided adequate notice of the possibility that the district
court might consider a consecutive sentence. The district
court was not required to supplement this notice. We therefore
vacate Hahn’s sentence and remand to the district court for
resentencing.4

  VACATED AND REMANDED.



KOZINSKI, Chief Judge, concurring:

  I join the court’s opinion without reservation. I note, how-
  4
  Because we remand for resentencing, we do not address the govern-
ment’s argument that the concurrent sentence was unreasonable.
                   UNITED STATES v. HAHN                2709
ever, that even if notice were required by Rule 32(h), this
wouldn’t justify imposing a sentence that the district judge
believed unreasonable. Here, the judge said that Hahn “should
have a consecutive sentence, but I’m not going to impose it,”
and cited the lack of notice as the only reason. If a judge
believes that he can’t impose the right sentence without giv-
ing notice, he must give notice—and grant a continuance if
necessary—rather than imposing the wrong sentence.
