                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                             June 16, 2005
                                   TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellant,

 v.                                                        No. 04-3234
                                                           (D. Kansas)
 JOSE SANTOS MONROY,                              (D.Ct. No. 04-CR-10006-JTM)

          Defendant - Appellee.


                             ORDER AND JUDGMENT *


Before KELLY, O’BRIEN, and TYMKOVICH, Circuit Judges.



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

unanimously that oral argument would not materially assist 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.

      On March 10, 2004, Jose Santos Monroy pled guilty to illegal re-entry after

deportation subsequent to a conviction for an aggravated felony in violation of 8


      *
          This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
U.S.C. § 1326(a) and (b)(2). On June 1, 2004, the district court departed

downward from the sentencing guidelines and sentenced Monroy to forty-six

months imprisonment. 1 The Government appeals. Exercising jurisdiction under

18 U.S.C. § 3742(b) and 28 U.S.C. § 1291, we VACATE the sentence and

REMAND for resentencing.

      Background

      In aid of sentencing, the district court ordered preparation of a Presentence

Investigation Report (PIR). The PIR calculated a total offense level of 21 and a

criminal history category of V, resulting in a guideline range of 70 to 87 months. 2

Monroy moved for downward departure, see 18 U.S.C. § 3553(b)(1) (allowing

departures under strict conditions but since excised by United States v. Booker, --

U.S. -- , 125 S.Ct. 738, 756 (2005)), on two grounds: 1) the criminal history

category assigned to him in the PIR substantially over-represented the seriousness

of his criminal history or the likelihood he would commit other crimes, see USSG

§4A1.3(b)(1) and 2) cultural assimilation. See USSG §5K2.0(a). At sentencing,

the court downward departed in criminal history category from V to IV on the

ground category V over-represented the seriousness of Monroy’s criminal history.

      1
        The statute allows for imprisonment for no more than twenty years. See 18
U.S.C. § 1326(b)(2).
      2
        The PIR and the eventual sentence applied the November 2003 edition of the
United States Sentencing Guidelines. See United States Sentencing Commission,
Guidelines Manual (Nov. 2003).

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The court also downward departed two offense levels, to 19, on the ground of

exceptional rehabilitation -- a ground not identified in the PIR, specifically

advanced by Monroy, noticed to either party or argued at sentencing. The

consequent guideline range was 46 to 57 months. The court sentenced Monroy at

the low end of the range.

       Discussion

       The Government appeals each of the downward departures ordered by the

district court. 3 Inter alia, the Government challenges the court’s failure to give

reasonable notice it was contemplating a downward departure for exceptional

rehabilitation, a departure awarded only at the conclusion of the sentencing

hearing.

       We first consider the appropriate standard of review to apply to the

Government’s claim. The Government did not object to the court’s award of a

downward departure for exceptional rehabilitation and raises its objection for the


       3
         In his reply brief, Monroy contends, inter alia, that his sentence violates the
decision in Blakely v. Washington, -- U.S.--, 124 S.Ct. 2531 (2004), in which the Supreme
Court applied its decision in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (“Other
than the fact of a prior conviction, any fact that increases the penalty for a crime beyond
the prescribed statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt.”), to invalidate, under the Sixth Amendment, application of
Washington’s sentencing guidelines. In Booker, the Court subsequently extended its
ruling in Blakely to invalidate the federal sentencing guidelines insofar as they were
mandatory. 125 S.Ct. at 745. Given our decision to vacate Monroy’s sentence and
remand for resentencing on an alternate basis, we need not decide his Blakely claim or the
propriety of raising it for the first time in his reply brief.

                                            -3-
first time on appeal. At first blush, this would suggest we should review for plain

error. See F ED . R. C RIM . P. 52(b). However, where a “complete lack of notice

made it impossible for the parties to anticipate the nature of the [downward

departure] and short-circuited the significance of any opportunity to comment[,]”

we will not consider the party who objects for the first time on appeal to have

waived objection at the trial level. United States v. Bartsma, 198 F.3d 1191, 1198

(10th Cir. 1999). We therefore review for harmless error. See F ED . R. C RIM . P.

52(a).

         In Burns v. United States (a case in which the district court departed

upward without prior notice to the parties of its contemplation of same), the Court

held:

         [B]efore a district court can depart upward on a ground not identified
         as a ground for upward departure either in the presentence report or
         in a prehearing submission by the Government, Rule 32 requires that
         the district court give the parties reasonable notice that it is
         contemplating such a ruling.

501 U.S. 129, 138 (1991). Significantly, the Court noted “[i]t is equally

appropriate to frame the issue as whether the parties are entitled to notice before

the district court departs upward or downward from the Guidelines range. Under

Rule 32, it is clear that the defendant and the Government enjoy equal procedural

entitlements.” Id. at 135 n.4. With the Burns decision in mind, Rule 32 was

amended in 2002:


                                           -4-
       Notice of Possible Departure from Sentencing Guidelines.
       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.

F ED . R. C RIM . P. 32(h). See also Advisory Committee Notes to Rule 32, 2002

Amendments (explaining Burns provenance); Bartsma, 198 F.3d at 1199-1200

(Burns violated where the court, without prior notice to parties that it

contemplated doing so, imposed sex offender registration requirement as

condition of supervised release). Based on the foregoing, we conclude the district

court erred in departing downward for exceptional rehabilitation without giving

prior notice to the parties it contemplated such a departure, and the error was not

harmless. This being so, we need not reach other sentencing issues presented for

review.

       We add there is nothing in the remedial portion of Booker which impugns

the continued vitality of departures 4 or Rule 32(h). Booker “makes the Guidelines

effectively advisory. It requires a sentencing court to consider Guidelines ranges,


       4
         Booker is clear that the offending aspect of § 3553(b)(1) is not its reference to
departures but rather its language mandating application of the guidelines. “[T]he
existence of § 3553(b)(1) is a necessary condition of the constitutional violation. That is
to say, without this provision – namely the provision that makes the relevant sentencing
rules mandatory and imposes binding requirements on all sentencing judges – the statute
falls outside the scope of Apprendi's requirement.” Booker, 125 S.Ct. at 764 (internal
quotation marks, ellipsis and alteration omitted).

                                            -5-
but it permits the court to tailor the sentence in light of other statutory concerns

as well.” 125 S.Ct. at 757 (citations omitted). Tailoring a sentence will no doubt

occasionally involve, as it has in the past, departure from a standard guideline

range. Such departures, as with those under the now-excised § 3553(b)(1), are

subject to Rule 32(h). Post-Booker, we will review a sentence under a standard of

reasonableness. Id. at 765. It is to this standard that departures are now tied, not

the strictures of the now-excised § 3553(b)(1).

      Conclusion

      Accordingly, we VACATE the sentence and REMAND for resentencing

consistent with this opinion and Booker.



                                        Entered by the Court:

                                        Terrence L. O’Brien
                                        United States Circuit Judge




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