United States of America v. Jorge Noe Chinchilla-Galvan, also known as Oscar

* Concurring in judgment only.
** Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
September 12, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-20605
United States of America
Plaintiff-Appellee
v.
Jorge Noe Chinchilla-Galvan, also known as Oscar
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:06-CR-44
Before DEMOSS, DENNIS, and OWEN,* Circuit Judges.
DENNIS, Circuit Judge:**
Chinchilla-Galvan appeals his sentence, alleging a number of errors in the
district court’s upward departure from the sentencing guidelines advisory range.
Finding that the district court plainly erred in failing to give the notice required
under Rule of Criminal Procedure 32(h), this court VACATES Chinchilla-
Galvan’s sentence and REMANDS the issue.
I. FACTUAL AND PROCEDURAL BACKGROUND

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Jorge Noe Chinchilla-Galvan was charged in a two-count indictment with
possessing counterfeit and falsely made alien registration receipt cards on May
6, 2005, and June 3, 2005. He pleaded guilty to both offenses without the benefit
of a plea agreement.
The presentence report (PSR) assigned Chinchilla-Galvan a base offense
level of 11. Chinchilla-Galvan’s offense level was enhanced by 3 levels because
his offense involved between 6 and 24 documents. Chinchilla-Galvan’s offense
level was then reduced by 2 levels for acceptance of responsibility.
Chinchilla-Galvan’s total offense level of 12, combined with his criminal history
category of I, yielded an advisory sentencing guideline range of 10 to 16 months
imprisonment. The PSR did not identify any factors warranting departure, and
Chinchilla-Galvan did not object to the PSR.
At sentencing, Chinchilla-Galvan requested that the district court
sentence him to 10 or fewer months of imprisonment, and the Government
recommended a 10-month term. Without prior notice, the district court imposed
a 3-level upward departure in Chinchilla-Galvan’s offense level. With a total
offense level of 15, Chinchilla-Galvan’s advisory sentencing guideline range
became 18 to 24 months of imprisonment. The district court sentenced
Chinchilla-Galvan to serve a 24-month term for each count of conviction, to run
concurrently, to be followed by a 3-year term of supervised release for each count
of conviction, also to run concurrently. The district court overruled
Chinchilla-Galvan’s objection to the reasonableness of his sentence.
Chinchilla-Galvan appealed.
II. DISCUSSION
Before this court, Chichilla-Galvan challenges the district court’s
calculation of his sentence under the sentencing guidelines, the reasonableness
of his sentence, and the district court’s failure to give notice that it was

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considering an upward departure. Because we find plain error as to the last
issue and remand accordingly, we do not address the other claims.
A. Standard of Review
The district court’s failure to give notice of its intent to depart from the
sentencing guidelines is subject to plain error review. See United States v. Olano,
507 U.S. 725, 730 (1993). Generally, this court reviews de novo such claims that
a defendant was not provided reasonable notice, United States v. Andrews, 390
F.3d 840, 844 (5th Cir. 2004), but when a defendant fails to object to a lack of
notice, the standard is plain error review. United States v. Olano, 507 U.S. 725,
730 (1993). Since Chinchilla-Galvan did not object to the lack of notice, we
review the district court’s conduct for plain error.
B. Analysis
To prove plain error a defendant must satisfy three elements: (1) an error
(2) that is clear and obvious (3) that affects substantial rights. See United States
v. Reyna, 358 F.3d 344, 350 (5th Cir. 2004). If a defendant meets these criteria,
this court has discretion to correct the error and will do so if it seriously affects
the “fairness, integrity, or public reputation of judicial proceedings.” Id.
As the Government concedes, Chinchilla-Galvan meets these plain error
standards. The district court’s failure to give any presentencing notice of its
upward departure constitutes a clear and obvious error in violation of Federal
Rule of Criminal Procedure 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 rehearing
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.

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Fed. R. Crim. P. 32(h). We find that the district court’s failure to give notice of
its intent to depart upwardly constitutes plain error.
The Government concedes as much, but argues that this court should
decline to remedy the error because it does not seriously affect the “fairness,
integrity, or public reputation of judicial proceedings.”
We disagree. The district court’s disregard for Rule 32(h), affording
Chinchilla-Galvan no notice before choosing a sentence substantially above the
advisory guideline range, gave Chinchilla-Galvan no meaningful opportunity to
prepare a response or objection to the departure. This clearly affected the
fairness, integrity, and reputation of judicial proceedings.
Accordingly, we VACATE Chinchilla-Galvan’s sentence and REMAND for
resentencing.

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