                           RECOMMENDED FOR FULL-TEXT PUBLICATION
                                Pursuant to Sixth Circuit Rule 206
                                      File Name: 08a0094p.06

                    UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                    _________________


                                                  X
                             Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                   -
                                                   -
                                                   -
                                                       No. 06-1867
         v.
                                                   ,
                                                    >
 DONALD WAYNE ALEXANDER,                           -
                          Defendant-Appellant. -
                                                  N
                    Appeal from the United States District Court
                 for the Western District of Michigan at Marquette.
                   No. 05-00048—R. Allan Edgar, District Judge.
                                   Argued: February 7, 2008
                             Decided and Filed: February 26, 2008
                  Before: KENNEDY, MARTIN, and COLE, Circuit Judges.
                                      _________________
                                           COUNSEL
ARGUED: Paul L. Nelson, FEDERAL PUBLIC DEFENDER’S OFFICE, Grand Rapids,
Michigan, for Appellant. Timothy P. VerHey, ASSISTANT UNITED STATES ATTORNEY,
Grand Rapids, Michigan, for Appellee. ON BRIEF: Paul L. Nelson, FEDERAL PUBLIC
DEFENDER’S OFFICE, Grand Rapids, Michigan, for Appellant. Paul D. Lochner, ASSISTANT
UNITED STATES ATTORNEY, Marquette, Michigan, for Appellee.
         MARTIN, J., delivered the opinion of the court, in which COLE, J., joined. KENNEDY,
J. (pp. 4-5), delivered a separate dissenting opinion.
                                      _________________
                                          OPINION
                                      _________________
         BOYCE F. MARTIN, JR., Circuit Judge. Defendant-Appellant Donald Wayne Alexander
pleaded guilty to an indictment charging him with sexual abuse of a minor in violation of 18 U.S.C.
§ 2243(a). The district court departed upward and sentenced Alexander to forty-two months’
imprisonment. Because the district court failed to provide notice of the variance as required by
Federal Rule of Criminal Procedure 32(h) we VACATE Alexander’s sentence and REMAND to the
district court for re-sentencing.




                                                1
No. 06-1867            United States v. Alexander                                                 Page 2


                                                    I
        On January 31, 2006, Alexander entered into a plea agreement whereby he pleaded guilty
to an indictment that charged him with sexual abuse of a minor in violation of 18 U.S.C. § 2243(a).
The pre-sentence report calculated the Guidelines range for imprisonment at eighteen to twenty-four
months and found no reason for any departure. Alexander filed a sentencing memorandum which,
among other arguments, requested a recommendation for mental health and educational counseling.
The sentencing hearing was held on June 5, 2006. At the hearing, Alexander’s attorney again asked
the court to sentence Alexander in a manner that would allow him to receive treatment for his
problems during his period of incarceration. The court stated:
        The defendant also has a need for sex offender treatment that, frankly, there is not
        enough time to address that with a guidelines range sentence in this case, because
        normally we send those people down to Butner, North Carolina, to the sex offender
        treatment program down there, and it takes a while to get that done . . . And with a
        guideline sentence, there is not enough time left for him to get substance abuse
        treatment and sex abuse treatment, and he needs that.
        The judge then sentenced Alexander to forty-two months in prison and recommended him
for participation in a five-hundred hour mental health and substance abuse treatment program. The
judge asked if there were any objections, and both parties answered in the negative.
                                                    II
        Because Alexander did not object to the upward variance when asked at the sentencing
hearing, we review his sentence for plain error. Plain-error review is governed by Rule 52(b), which
provides that “[a] plain error that affects substantial rights may be considered even though it was not
brought to the court’s attention.” FED. R. CRIM. P. 52(b). To vacate a sentence for plain error, we
must find (1) an error that (2) is plain, (3) affects substantial rights, and (4) seriously affects the
fairness, integrity or public reputation of judicial proceedings.” United States v. Olano, 507 U.S.
725, 732-34, 736 (internal quotation marks and alteration omitted).
        Alexander alleges a violation of Rule 32(h), which states:
        Before the court may depart from the applicable sentencing range on a ground not
        identified for departure either in the presentence report or in a party’s prehearing
        submission, the court must give the parties reasonable notice that it is contemplating
        such a departure. The notice must specify any ground on which the court is
        contemplating a departure.
FED. R. CRIM. P. 32(h). In United States v. Cousins, this Court held that Rule 32(h) applies to all
sentences that deviate from the Guidelines. 469 F.3d 572, 580 (6th Cir. 2006).
        We find that Cousins provides controlling precedent in this case. In Cousins, the district
court calculated the guidelines range to be thirty-seven to forty-six months’ imprisonment. Without
notice, the judge then departed upward to forty-eight months. Cousins, 469 F.3d at 575. In that
case, this Court vacated Cousins’s sentence for violating Rule 32(h), finding that the departure
without notice was plain error. Id. at 581. The error was plain because notice of intent to depart is
clearly required by Rule 32(h) and nothing in the pre-sentence report or the parties’ filings stated
any grounds for departure. Id. at 580. The error affected substantial rights because the evidence
supporting the departure was not irrebuttable and Cousins could have prepared an argument to
persuade the judge against departing. Id. at 581. Finally, this Court declined to exercise its
discretion to find that the error did not affect the fairness, integrity, or public reputation of judicial
No. 06-1867              United States v. Alexander                                                         Page 3


proceedings because “the evidence supporting the variance . . . is neither overwhelming nor
uncontroverted.” Id.
       Each of these elements is present in this case as well. No notice of an intent to depart is
present in the submissions of the parties or the pre-sentence report. The judge departed upward to
allow sufficient time for Alexander to take part in a rehabilitation program, but, with advance notice,
Alexander could have presented evidence that forty-two months was greater than required to meet
that end. Finally, the evidence supporting the upward departure is not “overwhelming” since
Alexander argues that rehabilitation programs   requiring fewer than forty-two months were available
to him. We therefore find that Cousins1 controls, and we remand this case for re-sentencing.
                                                        III
       Because the district court committed plain error in departing upwards, we VACATE the
sentence and REMAND for re-sentencing.




        1
          We note that the Supreme Court recently granted certiorari on a closely related issue in Irizarry v. United
States, 458 F.3d 1208, cert. granted, 128 S.Ct. 828 (Jan. 4, 2008). However, Cousins remains the law of this Circuit
unless and until the Supreme Court holds otherwise.
No. 06-1867               United States v. Alexander                                                             Page 4


                                                ________________
                                                    DISSENT
                                                ________________
        KENNEDY, Circuit Judge, dissenting. While I agree with the majority that the district
court’s failure to provide Defendant Alexander with reasonable notice of its intention to depart from
the Guidelines range was plain error, I respectfully dissent with their decision to notice the error as
Defendant has not demonstrated that this error affects substantial rights. “An effect on substantial
rights is typically established through a showing of an actual effect on the outcome of the case.”
United States v. Lopez-Medina, 461 F.3d 724, 745 (6th Cir. 2006). We have recognized, though,
that it will be the rare defendant who can produce evidence that his sentence would have been
different had the district court provided him with advance notice of its intention to impose an
upward variance. United States v. Cousins, 469 F.3d 572, 581 (6th Cir. 2006). Nonetheless,
ultimately “[i]t is the defendant rather than the Government who bears the burden of persuasion with
respect to prejudice.” United States v. Olano, 507 U.S. 725, 734 (1993).
        In the present case, Defendant argues that given adequate notice he would have had the
opportunity to obtain information and prepare additional argument regarding what sentence would
be sufficient, but not greater than necessary, for the sex offender treatment contemplated by the court
to be completed. See Appellant’s Br. at 12. However, Defendant does not actually proffer any such
evidence or make any such argument on appeal. Contrary to the majority’s assertion, see Maj. Op.
at 2-3, Defendant has not identified what other sex offender treatment programs would be available
to him, requiring fewer than forty-two months for eligibility and completion, that he could have
presented to the district court if given notice of its intention to impose an upward departure on that
ground. Without more, Defendant has failed to carry his burden on plain error review to show that
the district court’s error prejudiced the outcome of his case.
         To find an effect on substantial rights, the majority relies on Cousins, in which a panel of this
Court accepted a similar argument, in dicta, where “it appear[ed] at least possible that defense
counsel could, given adequate notice, have prepared additional argument and evidence and thus
persuaded the district court that the guidelines range was appropriate.” 469 F.3d at 581. The
majority, however, fails to recognize a key distinction between Cousins and the case at hand. In
Cousins, the district court had failed to explain its reasoning for imposing the upward variance; thus,
it is understandable that the Cousins panel did not require the defendant to indicate “how, if given
proper notice and opportunity to comment, he could have challenged the information” to show
prejudice. United States v. Nappi, 243 F.3d 758, 770 (3d Cir. 2001), cited with approval in United
States v. Meeker, 411 F.3d 736, 746 (6th Cir. 2005). This is unlike the present case in which the
district court plainly stated its reasons for imposing the upward variance. To satisfy his burden on
appeal, Defendant should at least indicate how, if given proper notice, he could have challenged the1
factors relied on by the district court in imposing the variance to affect its sentencing decision.


         1
           Instead, on appeal, the Government presents evidence demonstrating that the district court’s imposed sentence
was “sufficient, but not greater than necessary” to ensure that Defendant had the opportunity to complete sex offender
treatment while in custody. According to the criteria for acceptance into the Bureau of Prisons sex offender treatment
program, a prisoner cannot have more than 36 months or less than 18 months left in his sentence to be eligible for the
program at FCI Butner, North Carolina. In light of the fact that Defendant had already been in custody for about five
months at the time of sentencing, if the district court had sentenced Defendant at the high end of the Guidelines range
to 24 months imprisonment, he would have to have arrived at FCI Butner in less than one month to be eligible to
participate in the program. The district court gave Defendant a 42-month sentence, which, if given credit for time served,
placed Defendant at the outer range of eligibility for the treatment program. Thus, it appears that the imposed 42-month
sentence was sufficient, but not greater than necessary, to ensure that Defendant was provided with the greatest
opportunity to complete the sex offender treatment the district court determined he needed.
No. 06-1867           United States v. Alexander                                              Page 5


Defendant, however, still has not identified the substance of the arguments he claims he could have
made if given proper notice.
        Because I find that Defendant has not satisfied his burden on appeal to show that the district
court’s plain error in failing to provide reasonable notice affected his substantial rights, I would
decline to take notice of the forfeited error.
