If district court departs upward at sentencing without prior notice, burden is on government, not defendant, to show lack of notice is harmless error

SENTENCING United States v. Calzada-Maravillas, No. 05-5029, ___ F.3d ___ (10th Cir. Apr. 17, 2006)(N.D. Oklahoma). Appeal of sentence for reentry by deported alien after former conviction of aggravated felony in violation of 8 U.S.C. § 1326(a) and (b)(1) and (2). HELD: (1) Where district court judge departed upward from guideline sentencing range without giving prior notice of intent to depart and defendant objected to lack of notice, defendant is not required to specify arguments he would have made or evidence he would have investigated in order to avoid disposition of case on appeal as harmless error. Under harmless error analysis, burden is on government, not defendant, to show lack of notice was harmless. (2) If presentence report does not explicitly identify defendant’s criminal history as ground for upward departure, it does not provide reasonable notice of potential for such departure, even if it lists defendant’s criminal history. Read the opinion here.