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United States v. Deane ( 2003 )


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  •                                                        United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS             May 21, 2003
FOR THE FIFTH CIRCUIT              Charles R. Fulbruge III
Clerk
No. 02-21013
c/w No. 02-21014
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICHARD MASON DEANE,
Defendant-Appellant.
--------------------
Appeals from the United States District Court
for the Southern District of Texas
(H-02-CR-280-All)
--------------------
Before DAVIS, WIENER, AND EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Richard Deane appeals the sentence imposed
following his guilty-plea convictions for 52 counts of conspiracy,
mail fraud, wire fraud, and money laundering and for failure to
appear for sentencing.    Deane argues that, in violation of FED. R.
CRIM. P. 32 and Burns v. United States,
    501 U.S. 129
     (1991), the
district court failed to give him notice prior to granting an
*
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this opinion should not be published and is not precedent except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.
upward   departure   on   a    ground   that     was   not    specified   in    the
government’s motion for upward departure.
To comply with Rule 32, a district court must give a defendant
reasonable notice of its intention to depart upward on a ground not
identified in either the presentence report (PSR) or a prehearing
submission by the government.               See Burns,
    501 U.S. at 138-39
    ;
United States v. Nevels,
    160 F.3d 226
    , 231 (5th Cir. 1998).                    “The
purpose behind notice of upward departure is to give effect to the
Rule 32 requirement that the parties be given ‘an opportunity to
comment upon the probation officer's determination and on other
matters relating to the appropriate sentence.’”                United States v.
Milton,
    147 F.3d 414
    , 421 (5th Cir. 1998)(quoting Burns,
    501 U.S. at 135
    ).    Because Deane objected to the lack of notice in the
district court, review in this court is de novo.               See United States
v. Knight,
    76 F.3d 86
    , 87 (5th Cir. 1996).
The record reflects that at the sentencing hearing, the court
afforded Deane two opportunities to respond to the proposed upward
departure for placing the proceeds of the fraudulent scheme in
investments   outside     of   the   United     States,      thereby   preventing
restitution to Deane’s victims.             See United States v. George,
    911 F.2d 1028
    , 1029-30 (5th Cir. 1990).             First, the court offered to
postpone the sentencing hearing for seven days so that Deane could
produce documentation to refute the grounds for the departure, but
Deane declined the offer.         Second, the court suggested to Deane
that a PSR could be prepared with respect to the merits of the
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departure, but Deane’s counsel informed the court that he would
instruct Deane not to cooperate with any such investigation. Deane
fails to identify how additional notice prior to the sentencing
hearing would have assisted him or, alternatively, how the notice
provided at the sentencing hearing prevented him from adequately
responding to the merits of the departure.   See George,
    911 F.2d at 1029-30
    .    Accordingly, the judgment of the district court is
AFFIRMED.
3