UNITED STATES of America, Plaintiff-Appellee, v. Carlos Ruben HINOJOSA-GONZALEZ, aka Carlos Gonzales; Carlos Gonzalez; Carlos Hinojosa; Carlos Sotelo; El Mojarra, Defendant-Appellant

United States Court of Appeals for the Ninth Circuit1998-04-02No. No. 96-50584

142 F.3d 1122

Summary · law.co

Holding. The court vacated Hinojosa's sentence and remanded the case for resentencing because the district court violated Federal Rule of Criminal Procedure 32 by failing to provide adequate advance notice of the legal grounds for its upward departure decision.

Carlos Hinojosa-Gonzalez pleaded guilty to four drug possession charges and one conspiracy charge, receiving a 480-month prison sentence along with supervised release and a fine. The district court granted the government's motion for an upward departure from the sentencing guidelines based on his extensive history of narcotics trafficking. On appeal, Hinojosa contested the sentence, arguing that the court failed to provide him adequate advance notice of the specific legal and factual grounds it would use to justify the upward departure, as required by Federal Rule of Criminal Procedure 32 and Supreme Court precedent.

The appellate court agreed with Hinojosa's position. Although the court acknowledged that the general fact of his drug trafficking history was known to both parties and had been mentioned in pre-sentencing documents, the specific combination of guidelines provisions the court ultimately relied upon—prior unpunished criminal conduct and extraordinary drug quantity—was raised only during the sentencing hearing itself, not beforehand. The court determined that adequate notice must encompass both the factual and legal bases for departure, not merely the facts.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether Rule 32 requires advance notice of both factual and legal grounds for sentencing departure
Adequacy of notice when factual basis is known but specific legal grounds are announced at sentencing
Standard for assessing compliance with notice requirements in upward departure motions

Procedural posture

Hinojosa appealed his sentence following conviction on drug and conspiracy charges, challenging the district court's upward departure as procedurally deficient.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

ORDER

The opinion filed December 31, 1997 is withdrawn, and the attached opinion filed in its place.

With this change, the panel votes to deny the petition for rehearing and reject the suggestion for rehearing en banc.

The full court has been advised of the suggestion for rehearing en banc and no active judge has requested a vote on whether to rehear the matter en banc. See Fed. R.App. P. 35.

The petition for rehearing is denied and the suggestion for rehearing en banc is rejected.

OPINION

PER CURIAM:

Following his plea of guilty to four drug possession counts under 21 U.S.C. § 841(a)(1), and one conspiracy to possess with intent to distribute count under 21 U.S.C. §§ 841(a)(1), 846, Carlos Hinojosa-Gonzales was sentenced to 480 months in prison and 20 years of supervised release, and was fined $3 million. He appeals his sentence. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

Hinojosa argues the district court failed to provide him with adequate notice of the grounds for its decision to grant the Government’s upward departure motion, as required by Federal Rule of Criminal Procedure 32. See Burns v. United States, 501 U.S. 129, 138, 111 S.Ct. 2182, 2187, 115 L.Ed.2d 123 (1991); United States v. Rafferty, 911 F.2d 227, 230 (9th Cir.1990). We assess the adequacy of notice de novo. See United States v. Karterman, 60 F.3d 576, 583 (9th Cir.1995).

In Bums, the Supreme Court highlighted Rule 32’s goal of “focused, adversarial development of the factual and legal issues relevant to determining the appropriate Guidelines sentence,” 501 U.S. at 134, 111 S.Ct. at 2185, and concluded this “requires the district court [to] give the parties reasonable notice” of “the ground on which the district court is contemplating an upward departure,” id. at 138-39, 111 S.Ct. at 2187-88. If Hinojosa did not receive adequate notice, we must vacate his sentence and remand for resentencing.

The Government correctly notes that the fact of Hinojosa’s extensive history of narcotics trafficking—the basis for the court’s upward departure—was well known to both parties. Hinojosa was likewise aware the court might depart based on this history—both the Pre-Sentence Report and the prosecution’s sentencing brief recommended it do so.

As the Government admits, however, the ultimate grounds for the court’s departure— a combination of U.S.S.G. § 4A1.3(e) (prior unpunished criminal conduct) and U.S.S.G. § 2D1.1, emt. 17 (extraordinary drug quantity)—was only advanced at the sentencing hearing itself.

We reject the Government’s argument that Rule 32 and Bums require notice of the factual but not the legal grounds for departure. Both factual and legal grounds for departure are within Rule 32’s reach. See Burns, 501 U.S. at 134, 137, 111 S.Ct. at 2185, 2186-87; United States v. Nuno-Para, 877 F.2d 1409, 1415 (9th Cir.1989) (notice of both “conclusions” and “facts” underlying sentence is required).

Since Hinojosa was denied his right to adequate notice under Rule 32, we vacate his sentence and remand for further consideration. Since we reverse on notice grounds, we do not address Hinojosa’s argument that the district court erroneously departed on the vertical rather than horizontal sentencing axis.

Appellant’s sentence is VACATED and the case REMANDED to the district court for further proceedings consistent with this opinion.