Summary Calendar UNITED STATES OF AMERICA v. Osamwonya Ohonba

*Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the Court has determined
that this opinion should not be published.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 92-3517
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
OSAMWONYA OHONBA,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Louisiana
(CR 92 009 "I")
March 25, 1993
Before GARWOOD, JONES, and EMILIO GARZA, Circuit Judges.*
PER CURIAM:
Appellant pleaded guilty to making a false statement in
an immigration document in violation of 18 U.S.C. § 1001. Ohonba
and the United States both took issue with the presentence report
and filed objections, the effect of which would have required the
district court to select a sentence level ranging from 6 to 10 with
a corresponding punishment range from probation to 12 months

-- 1 of 4 --

2
imprisonment. Neither the probation office nor the government had
suggested that a departure was warranted beyond whatever base
offense level the district court settled on. Nevertheless, at the
close of the sentencing hearing, the district court suddenly and
without notice departed upward to assess a two-year term of
imprisonment. On appeal, appellant contends that this action
violated Burns v. United States, ____ U.S. ____, 111 S. Ct. 2182
(1991). We agree, we believe the district court's failure to
comply with Burns constituted plain error, and we accordingly
vacate and remand for resentencing.
The rule stated in Burns could not be clearer:
The question in this case is whether a
district court may depart upward from the
sentencing range established by the Sentencing
Guidelines without first notifying the parties
that it intends to depart. We hold that it
may not.
Burns, 111 S. Ct. at 2182. As Burns was decided in 1991, and
sentencing occurred in this case in May, 1992, there is no reason
why the district court should have overlooked Burns.
The government's only defenses against resentencing are
that appellant did not object to the departure in the district
court, that appellant was constructively on notice of the
possibility of a departure, and that the departure was in any event
reasonable or not plain error. We dispose of these contentions in
reverse order.
The fact that a sentence imposed by a district court is
otherwise reasonable cannot salvage a sentencing decision from the
misapplication of the guidelines. We express no opinion on

-- 2 of 4 --

3
whether, if the district court had given proper notice to Ohonba,
the departure was appropriate.
The government's contention that Ohonba had constructive
knowledge of the court's ability to depart is nonsense. Every
defendant is informed at his guilty plea colloquy that the court
may depart upward. Burns states that "Rule 32 requires that the
district court give the parties reasonable notice that it is
contemplating such a ruling. This notice must specifically
identify the ground on which the district court is contemplating an
upward departure." ____ U.S. ____, 111 S. Ct. at 2187 (emphasis
added).
Finally, while we agree that sentencing errors ordinarily
should be drawn to the court's attention immediately, see United
States v. Vontsteen, 950 F.2d 1086 (5th Cir.) (en banc), cert.
denied, 112 S. Ct. 30, 39 (1992), we hold that in this case plain
error occurred. The district court's upward departure was so
unexpected, so abrupt, so determined, and so obviously at odds with
Burns that appellant's counsel had to be taken aback. The contrast
with Vontsteen is instructive. In that case, the district court
had every reason to believe he was resentencing the defendant in
accordance with law, so it was up to the defendant to call his
attention promptly to an error. In this case, the district court
ought to have had Barns firmly in mind before it awarded a
departure, and there was no reason to forget it or deviate from its
command. The court's self-supervision should have prevented the
error. The error is "plain" because it at least doubled

-- 3 of 4 --

4
appellant's period of incarceration and gave him no opportunity to
respond.
VACATED and REMANDED for resentencing.

-- 4 of 4 --