                                                                        F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                        March 22, 2007
                                 TENTH CIRCUIT                        Elisabeth A. Shumaker
                                                                          Clerk of Court


 U N ITED STA TES O F A M ER ICA,

               Plaintiff - Appellee,                     No. 05-4284
          v.                                                D. Utah
 TH O MA S A CEV ED O ,                          (D.C. No. 2:05-CR-191-DB)

               Defendant - Appellant.



                            OR D ER AND JUDGM ENT *


Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Thomas Acevedo claims the sentence imposed upon him is unreasonable.

The district court did not articulate specific reasons justifying an upward




      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
“departure” or a “variance.” 1 Exercising jurisdiction under 28 U.S.C. § 1291 and

18 U.S.C. § 3742(a)(3), we REVERSE and REM AND for re-sentencing.

                                  I. Background

      Acevedo pled guilty to a Hobbs Act Robbery under 18 U.S.C. § 1951(a)

and to brandishing a firearm in relation to a crime of violence under 18 U.S.C. §

924(c). Using the 2004 edition of the U nited States Sentencing Commission’s

Guidelines M anual, Acevedo’s Presentence Report (PSR) identified his base

offense level for the Hobbs Act Robbery as 20. It also recommended a 12 level

enhancement under the career offender guideline. USSG §4B1.1. Acevedo

objected to the career offender enhancement arguing the PSR erroneously

classified his previous convictions for damaging a jail and theft as crimes of

violence. The district court determined Acevedo did not qualify as a career

offender under USSG §4B1.1(a). It concluded damaging a jail did not qualify as

a crime of violence, as defined by USSG §4B1.2(a), and therefore Acevedo did

not have the predicate offenses for a career offender under U SSG §4B1.1(a) —

two prior felony crimes of violence.

      W ithout the career offender enhancement, but taking into account a 3-level

downw ard adjustment for acceptance of responsibility, Acevedo’s total offense

      1
       A departure occurs “when a court reaches a sentence above or below the
recommended Guidelines range through application of Chapters Four or Five of
the Sentencing Guidelines.” United States v. Atencio, 476 F.3d 1099, 1101, n.1
(10th Cir. 2007). A variance occurs “when a court enhances or detracts from the
recommended range through application of § 3553(a) factors.” Id.

                                        -2-
level for the Hobbs Act Robbery was 17. His criminal history computation

produced a total history score of 14 which placed him in category VI. USSG

§5A. Based on an offense level of 17 and a criminal history category of V I,

Acevedo’s guideline range for the Hobbs Act Robbery was 51-63 months. Id.

Adding the mandatory minimum 84 months for brandishing a firearm, see USSG

§2K2.4(b), his guideline range for both counts was 135-147 months. 2 Id.

      Prior to the district court’s ruling on Acevedo’s career criminal status, the

government filed an “Alternative M otion for Upward Departure” in the event the

district court determined Acevedo did not qualify as a career offender. It argued

Acevedo’s criminal history category under represented the seriousness of his

criminal history and the likelihood he will reoffend when he is released from

prison. See USSG §4A1.3(a)(1).

      At the sentencing hearing on October 12, 2005, the district court heard

from both sides on whether to depart upward. Acevedo argued for a sentence

within the guideline range mentioning his troubled upbringing and a previous

period when he was able to move forward with his life as reasons for a sentence

within the guideline range. He also mentioned he has never physically hurt a

person. The government argued for an upward departure from the guidelines and

recommended a 4 level increase to the base offense level, i.e., increasing the base

      2
         The PSR reflected USSG §4B1.1(c)(2)(A) as the appropriate guideline
section, however, since the district court determined Acevedo was not a career
offender U SSG §2K2.4(b) applies.

                                         -3-
offense level from 17 (51-63 months) to 21 (77-96 months). It also requested the

court to sentence Acevedo at the high end of level 21 (96 months). In the end, the

government asked the district court to sentence Acevedo to 180 months, which

included the mandatory 84 months for brandishing a firearm.

      The district court granted the government’s M otion for Upward Departure

and sentenced Acevedo to 192 months in prison followed by 5 years supervised

release. Acevedo asked the district court to make his sentence concurrent with

his state sentence. The government did not object. The court stated:

      I w ill then state [in] the judgment and commitment order that this
      sentence is to run concurrent with the sentence that he is currently
      serving with the Utah State system. You have ten days to take an
      appeal of this, M r. Acevedo, and you may want to appeal the grant of
      the upw ard departure. I’m going to adopt [the government’s]
      argument as the basis for the Court’s reasons for an upward
      departure, finding both with reference to the sentencing guidelines
      themselves and the defendant’s criminal history, that it under
      represents [sic] the seriousness of the criminal past, and also reading
      from the statute that it under represents the likelihood that the
      defendant will commit other crimes in the future.

(R. Vol. IV., Doc. 29 at 19-20). 3 In the written Judgment filed on October 13,

2005, the district court stated: “[t]he court adopts the factual findings and

guidelines application recommended in the presentence report except as otherwise



      3
         In this instance, the district court’s basis for Acevedo’s sentence outside
the recommended guideline range constitutes both a departure and variance. To
the extent the district court relied on the guidelines under USSG §4A1.3(a)(1) as
justification for A cevedo’s sentence, it w as a departure. Atencio, 476 F.3d at
1101, n.1. However, the district court’s statutory reference, 18 U.S.C. §
3553(a)(2)(C), is a variance from the recommended range. Id.

                                         -4-
stated in open court.” (R. Vol. I., Doc. 23 at 4). Acevedo timely filed his notice

of appeal on October 19, 2005.

                                    II. Discussion

      A. Standard of Review

      Post Booker, a defendant’s sentence is required to be reasonable. United

States v. Booker, 543 U.S. 220, 261 (2005). “[T]he reasonableness standard of

review set forth in Booker necessarily encompasses both the reasonableness of the

length of the sentence, as well as the method by which the sentence was

calculated.” United States v. Kristl, 437 F.3d 1050, 1055 (10th Cir. 2006).

Acevedo, in arguing the district court failed to articulate specific reasons for the

upward departure and variance, is attacking the method by which his sentence was

calculated.

      The parties disagree on what standard of review should apply. Ordinarily,

when a claim of error was not raised in the district court, we review only for plain

error. United States v. Gonzalez-Huerta, 403 F.3d 727, 733 (10th Cir.) (en banc)

(citing F ED . R. C RIM . P. 52(b)), cert. denied, 126 S.Ct. 495 (2005). Relying on

United States v. Lopez-Flores, the government argues Acevedo did not object at

sentencing to the district court’s failure to support its upward departure and

variance with the specificity requirements of 18 U.S.C. § 3553(c) and therefore

we must review for plain error. 444 F.3d 1218, 1221 (10th Cir. 2006). Acevedo

disagrees and asserts he could not object to the district court’s lack of specificity

                                          -5-
in its judgment because it w as entered after the sentencing hearing.

      Acevedo’s dependance on the w ritten judgm ent is misplaced. “It is a

firmly established and settled principle of criminal law that an orally pronounced

sentence controls over a judgment and commitment order when the two conflict.”

United States. v. Villano, 816 F.2d 1448, 1450 (10th Cir. 1987) (en banc). In this

instance, the orally pronounced sentence and the written judgment do not conflict.

Nevertheless, “the law continues to be that the legally effective sentence is the

oral sentence” and “the true function of the written document is to help clarify an

ambiguous oral sentence by providing evidence of what was stated.” Id. at 1452.

At sentencing Acevedo had the opportunity to object to the method by which the

sentence w as imposed as w ell as the sentence itself. He failed to do so. There

was an extended colloquy between the parties after the district court orally

sentenced Acevedo, but he never raised the specificity issue. “A timely objection

to the method [of arriving at a sentence] can alert the district court and opposing

counsel, so that a potential error can be corrected, obviating any need for an

appeal.” Lopez-Flores, 444 F.3d at 1221. Since Acevedo did not bring this issue

to the attention of the district court and opposing counsel at sentencing, plain

error review is appropriate.

      “Plain error occurs when there is (1) error, (2) that is plain, which (3)

affects substantial rights, and which (4) seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” Gonzalez-Huerta, 403 F.3d at 732.

                                          -6-
Acevedo bears the burden of proving the third and fourth prongs of plain error.

United States v. Brown, 316 F.3d 1151, 1158, 1161 (10th Cir. 2003). Acevedo

claims the district court’s lack of explanation as to why it departed from the

guideline range in both open court and in the written judgment was error.

Acevedo also claims the district court erred in adopting the government’s

arguments in favor of departure without explaining why it sentenced him to 12

months beyond the government’s recommended length of sentence.

      B. M erits

      First, we must determine whether the district court erred. “If a legal rule

was violated during the district court proceedings, and if the defendant did not

waive the rule, then there has been an ‘error’ within the meaning of Rule 52(b)

despite the absence of a timely objection.” United States v. Olano, 507 U.S. 725,

733-34 (1993). W hen “a district court imposes a sentence falling within the range

suggested by the Guidelines, Section 3553(c) requires the court to provide only a

general statement of ‘the reasons for its imposition of the particular sentence.’”

See United States v. Ruiz-Terrazas, (No. 06-2138) 2007 W L 576034 at *2 (10th

Cir. Feb. 26, 2007) (quoting 18 U.S.C. § 3553(c)). “By contrast, when imposing

a sentence outside the G uidelines range, the same statute requires a district court

to state ‘the specific reason for the imposition of a sentence . . . , which reasons

must also be stated with specificity in the written order of judgment and

comm itment.’” Id. (quoting 18 U.S.C. § 3553(c)(2)). Here, in imposing a

                                          -7-
sentence outside the guideline range, the district court stated:

      I’m going to adopt [the government’s] arguments as the basis for the
      Court’s reasons for an upward departure, finding both with reference
      to the sentencing guidelines themselves and the defendant’s criminal
      history, that it under represents [sic] the seriousness of the criminal
      past, and also reading from the statute that it under represents the
      likelihood that the defendant will commit other crimes in the future.

(R. Vol. IV., Doc. 29 at 19-20.) This, by itself, is insufficient to satisfy the

“specific reason” requirements of § 3553(c)(2).

      “Simply restating the justification for upward departure does not fulfill the

separate requirement of stating the reasons for imposing the particular sentence.”

United States v. Proffit, 304 F.3d 1001, 1012 (10th Cir. 2002) (quotations and

citations omitted). “W e do not require the district court to justify the degree of

departure with mathematical exactitude, but we do require the justification to

include some method of analogy, extrapolation or reference to the sentencing

guidelines.” United States v. Whiteskunk, 162 F.3d 1244, 1254 (10th Cir. 1988)

(quotations omitted). The district court did not articulate its specific reasons for

imposing a sentence outside the guideline range. Even if the court could merely

adopt the government’s arguments as a sufficient explanation of its reasons, a

dubious proposition, this sentence exceeded the government’s requests and, a

fortiori, its adopted justifications by 12 months. The trial court erred.

      The error was plain. “An error is plain if it is ‘clear or obvious under

current law.’” United States v. Brown, 316 F.3d at 1158 (quoting United States v.



                                           -8-
Fabiano, 169 F.3d 1299, 1302-03 (10th Cir. 1999) (quotations omitted)). In this

instance it is clear, “our pre-Booker requirement that district courts provide

sufficient reasons to allow meaningful appellate review of their discretionary

sentencing decisions continues to apply in the post-Booker context.” United

States v. Sanchez-Juarez, 446 F.3d 1109, 1117 (10th Cir. 2006). The lack of an

explanation of the district court’s reasoning has left us in the “zone of appellate

speculation.” Id. (quoting United States v. Rose, 185 F.3d 1108, 1112 (10th Cir.

1999)).

      Under the third prong of plain error review , Acevedo “must make a specific

showing of prejudice to satisfy the ‘affecting substantial rights’” requirement of

plain error. Olano, 507 U.S. at 735. He claims the district court’s lack of

explanation of the departure precludes any meaningful review of the

reasonableness of his sentence. Pre-Booker, we required the district court’s

“justification to include some method of analogy, extrapolation or reference to the

sentencing guidelines.” Whiteskunk, 162 F.3d at 1254 (quotations omitted). In

essence, the sentence was required to be hooked to the guidelines as well as

sufficiently explained. Post-Booker, the district court, in setting a procedurally

reasonable sentence, must calculate the proper advisory guideline range and apply

the factors set forth in 18 U.S.C. § 3553(a). United States v. Cage, 451 F.3d 585,

591 (10th Cir. 2006). If a departure from the guidelines is contemplated,

traditional departure analysis continues to be a necessary part of the calculation of

                                          -9-
a proper advisory guideline range. W ithout such analysis it is difficult to

determine whether a sentence at variance with the guidelines is reasonable. Since

“our appellate role encompasses a limited inquiry into w hether the district court

did in fact exercise its discretion based on the [§] 3553(a) factors,” we cannot

review a sentence w ithout a sufficient explanation of the district court’s

reasoning. Sanchez-Juarez, 446 F.3d at 1117. Since Acevedo is entitled to

informed appellate review of his sentence, the district court’s failure to

adequately articulate its reasoning substantially affected Acevedo’s rights.

      Turning to the fourth prong, “[w]hen a plain error affecting substantial

rights seriously affects the fairness, integrity, or public reputation of judicial

proceedings, we may in our discretion choose whether to correct the error.”

United States v. Brown, 316 F.3d at 1160 (citations and quotations omitted). W e

exercise our discretion in this instance because the error forecloses our ability to

meaningfully review the sentence, thereby seriously affecting the fairness,

integrity and public reputation of judicial proceedings.

      United States v. Atencio has elevated the procedural requirements in

sentencing. W hether a district court departs or varies, Rule 32(h) of the Federal

Rules of Criminal Procedure requires “courts to give advance notice of their

intent to sentence above or below the identified advisory Guidelines range.”

Atencio, 476 F.3d at 1104. Furthermore, “Rule 32(h) and Burns [v. United States,

501 U.S. 129 (1991)] leave no doubt that the defendant has a right to know in

                                          -10-
advance the very ground upon which the district court might upwardly depart or

vary.” Id. In its Order and Opinion determining A cevedo did not qualify as a

career offender, the district court put the parties on notice it would, at sentencing,

consider the government’s motion for upward departure based on USSG

§4A1.3(a)(1) — Acevedo’s criminal history category did not fully represent the

seriousness of his past criminality and he would likely continue his criminal

career upon release from prison. However, compliance with Rule 32(h) does not

cure the lack of specificity in sentencing required by § 3553(c)(2). W ithout

adequate justification for an upward departure or variance, we cannot

meaningfully review the sentence for reasonableness, particularly when the court

imposed sentence is a year longer than the government’s recommendation.

      REVERSED and REM ANDED for re-sentencing in accordance with this

Order and Judgment.

                                                 ENTERED FOR THE COURT


                                                 Terrence L. O’Brien
                                                 Circuit Judge




                                          -11-
