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Surprise! Upward Departure Doesn't Require Notice?

By Robyn Hagan Cain on February 05, 2013 | Last updated on March 21, 2019

Nelfin Zelaya-Rosales got quite the surprise at his illegal reentry sentencing. Despite the fact that his presentence report recommended a 6-month sentence, the district court opted for an upward departure from the Sentencing Guidelines, and hit him with a 12-month sentence based on his five previous immigration encounters and four prior removals.

According to the Zelaya-Rosales, the sentence was unfair because he didn’t have prior notice. According to the Fifth Circuit Court of Appeals, that’s no big deal because there wasn’t a “miscarriage of justice.”

During sentencing, Zelaya-Rosales only objected to the reasonableness of the sentence, not the lack of notice, so the Fifth Circuit reviewed his case for plain error. To succeed on plain-error review, Zelaya-Rosales had to show: (1) an error, (2) that is clear and obvious, and (3) affected his substantial rights. Upon making such a showing, the Fifth Circuit could exercise its discretion to correct the error only if it seriously affected the "fairness, integrity, or public reputation of the judicial proceedings."

The government conceded that the district court's lack of notice was a clear and obvious error in violation of Federal Rule of Criminal Procedure 32(h). But, under prong three of the plain-error analysis, Zelaya-Rosales had to demonstrate a "reasonable probability that the result of the proceedings would have been different but for the error." Here, the government disputed that the error affected Zelaya-Rosales' substantial rights on the basis that he could not show a reasonable probability that the district court would have imposed a lesser sentence if it had given him notice of its intent to depart upward from the Guidelines.

The Fifth Circuit agreed.

Even assuming the sake of argument that the error affected Zelaya-Rosales' substantial rights, he did not meet his burden that the error seriously affected the "fairness, integrity, or public reputation of the judicial proceedings." Zelaya-Rosales didn't dispute the accuracy of his prior immigration encounters and removals, and therefore, couldn't show that the sentencing proceedings would have been different if the district court had given notice.

Concluding that the specific facts didn't give rise to a miscarriage of justice, the Fifth Circuit declined to correct the district court's error.

If Zelaya-Rosales had objected to the lack of notice at trial, the Fifth Circuit would have reviewed this case de novo. That more lax standard of review may have even produced a different outcome.

So do your clients a favor and learn from this guy's mistakes. If the district court springs an upward departure on you at sentencing, object to lack of notice.

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