Failure to Give Notice of Upward Departure Did Not Affect Substantial Rights

United States v. Zelaya-Rosales, No. 12-31021 (Reavley, Prado, Elrod) (per curiam)

Zelaya-Rosales pled guilty to illegal reentry with an advisory guideline range of 0 to 6 months. At sentencing, without prior notice, the district court imposed a 6-month upward departure based on Zelaya-Rosales’s 5 previous immigration encounters and 4 prior removals. Zelaya-Rosales objected to the reasonableness of the sentence but did not object to the lack of notice.

On appeal, the panel held that the district court’s error of not giving notice did not affect Zelaya-Rosales’ substantial rights because he could not show a reasonable probability that the district court would have imposed a lesser sentence if it had given him notice. The panel emphasized that Zelaya-Rosales did not dispute the accuracy of his immigration encounters and prior removals, which were facts included in his PSR. The panel also found the 6-month upward departure was not an abuse of discretion given the district court’s individualized assessment of § 3553(a) factors and the need for deterrence.