UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-10072

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DONALD GENE BROOKS,

Defendant-Appellant.

Appeal from the United States District Court for the Northern District of Texas (3:99-CR-311-ALL-H)

December 13, 2000

Before BARKSDALE, EMILIO M. GARZA, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Pursuant to a plea agreement, Donald Gene Brooks pleaded

guilty to one count of securities fraud. Departing upward six

levels, the district court sentenced Brooks to the statutory 60

months maximum. We VACATE and REMAND.

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. I.

From 1992 to 1999, Brooks fraudulently induced others to

invest in an “Interim Church Loan Fund” through Brooks’ business,

Brooks Financial Planning, Inc. Brooks diverted and misapplied the

funds and concealed his actions.

The presentence report (PSR) identified 31 victims, with

losses totaling more than $1.3 million. Most of them were elderly,

many were widowed, and many were on fixed incomes. They knew

Brooks as a minister; he had officiated at some of the victims’

spouses’ funerals and one wedding. The PSR excerpted victims’

statements describing the emotional and financial impact of the

fraud and the pain of Brooks’ betrayal.

The PSR applied the sentencing guideline for fraud, § 2F1.1,

and assigned a base offense level of six. U.S.S.G § 2F1.1. That

level was increased by 11, because the loss amount exceeded

$800,000, but not $1.5 million, see U.S.S.G. § 2F1.1(b)(1)(L), and

by two, because the offense involved more than minimal planning and

was a scheme to defraud more than one victim. U.S.S.G. §

2F1.1(b)(2).

The offense level was increased by two, because Brooks abused

a position of private trust and used his special skills to

significantly facilitate the fraud. U.S.S.G. § 3B1.3. But, a

three-level downward adjustment was recommended for acceptance of

responsibility. U.S.S.G. § 3E1.1(a), (b)(1) & (2).

2 Based on the resulting offense level of 18 and criminal

history category of I, Brooks’ guideline range was 27 to 33 months.

See U.S.S.G. ch. 5, pt. A. The maximum term of imprisonment was

five years. See 15 U.S.C. §§ 77q(a), 77x.

The PSR noted that upward departure might be warranted

pursuant to both § 5K2.3, for extreme psychological injury to the

victims, and § 5K2.5, for property loss not taken into account by

the Guidelines. U.S.S.G. §§ 5K2.3, 5K2.5. Brooks objected to

these bases.

A resulting PSR addendum stated that, in addition to the

possible §§ 5K2.3 and 5K2.5 upward departure, the court could

consider it under the comment to §2F1.1: “where the loss determined

significantly understates the seriousness of defendant’s conduct”.

The addendum stated the court could also rely on United States v.

Nevels, in considering an upward departure based on egregious

conduct, noting that in Nevels, the district court departed upward

seven levels pursuant to § 5K2.0, which authorizes a departure

based on a “combination of factors”. See United States v. Nevels,

(5th Cir. 1998), cert. denied,

(1999). However, the addendum did not specifically describe the

applicable factors.

On 28 December 2000, the district court advised the parties it

was considering an upward departure. But, its order did not

specify the basis for it.

3 Brooks objected to the PSR addendum, again urging upward

departure was not warranted under §§ 5K2.3 or 5K2.5. He also

referenced the “combination of factors” basis for upward departure,

and quoted the last paragraph of the comment to § 5K2.0, which

notes: a sentence outside the guideline range is not authorized

unless the case is atypical; and dissatisfaction with the available

range is not an appropriate departure basis. See U.S.S.G. § 5K2.0,

cmt.

Sentencing was held the same day Brooks received a second PSR

addendum. It stated upward departure was warranted because several

factors were not adequately accounted for by the Guidelines,

including: extreme psychological harm; length of fraudulent

behavior; victims’ age; their close relationship with Brooks; his

role as minister to them; and knowing endangerment of their

solvency.

At the hearing, Brooks asserted: the upward departure grounds

delineated in the second addendum were new; and he had not had an

opportunity to consider them. He contended he was prepared only to

address the two grounds specified in the original PSR — extreme

psychological harm and property loss.

The district court disagreed:

I think I was entitled to assume and I did assume that you had briefed the question of what would support an upward departure request.... And I think you ought to come today, regardless of what was in [the PSR] addendum, prepared to discuss any and all

4 aspects of the upward departure situation. So I deny the request for delay.

The district court then identified the factors it was considering

to support upward departure: length of fraudulent behavior;

victims’ age; close relationship with Brooks; number of victims and

their losses; knowing endangerment of victims’ solvency; and degree

of planning required to perpetuate the fraud. The court stated

that psychological harm was not a factor.

The district court adopted the findings in the PSR, and held

upward departure warranted. It departed six levels to an offense

level of 24, resulting in a sentencing range of 51 to 63 months.

Brooks was sentenced to the 60 months statutory maximum and ordered

to make restitution of approximately $1.3 million.

II.

Brooks maintains: (1) the district court failed to provide

reasonable notice of its upward departure grounds; (2) it erred by

departing upward, instead of applying the vulnerable victim

guideline enhancement; (3) it erred in denying his request to

review victims’ letters excerpted in the PSR; and (4) the

Government breached the plea agreement. Because we are remanding

for resentencing (first issue), we do not reach whether an upward

departure is proper (second issue). But, to frame the

resentencing, we do reach the third (victims’ letters) and fourth

(breach of plea agreement) issues.

A.

5 Concerning claimed lack of reasonable notice of the upward

departure grounds, and because Brooks so objected in district

court, we review de novo. United States v. Pankhurst,

(5th Cir.), cert. denied,

(1997) (no

plain error review where sufficient lack-of-notice objection).

A sentencing court must provide the parties an opportunity to

comment on matters relating to the appropriate sentence. FED. R.

CRIM. P. 32(c)(1). Burns v. United States,

(1991) (emphasis added), held:

[B]efore a district court can depart upward on a ground not identified as a ground for upward departure either in the presentence report or in a prehearing submission by the Government, 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.

The notice should be sufficient to satisfy “Rule 32's purpose of

promoting focused, adversarial resolution of the legal and factual

issues relevant to fixing Guidelines sentences”. United States v.

Milton,

(5th Cir. 1998) (quoting Burns,

).

The Government responds: citation to Nevels and § 5K2.0 in the

first PSR addendum sufficiently apprised Brooks of the “combination

of factors” basis for departure; he had adequate notice of the

facts on which the upward departure was based and did not object to

6 them; and, early in the sentencing hearing, the district court

further alerted Brooks to the factors it was considering.

Although the facts on which the district court relied are

found in the original PSR and the “combination of factors”

departure basis was stated in the first PSR addendum, the addendum

did not describe the factors justifing § 5K2.0 departure. Brooks

did not receive, until the day of sentencing, notice of the

combination of factors on which the district court relied in

upwardly departing.

Upward departure notice must be sufficient to avoid placing

defense counsel in the position of “trying to anticipate and negate

every conceivable ground on which the district court might choose

to depart on its own initiative”. Milton,

(quoting

Burns,

). “Because the Guidelines place essentially

no limit on the number of potential factors that may warrant a

departure ... no one is in a position to guess when or on what

grounds a district court might depart, much less to ‘comment’ on

such a possibility in a coherent way”. Burns,

.

By requiring Brooks to be “prepared to discuss any and all

aspects of the upward departure situation”, Brooks was in the

position of having to anticipate the grounds on which the court

might depart. Therefore, the notice was unreasonable. Cf. Milton,

(under plain error review, notice adequate

because, at hearing one month before sentencing, district court

7 advised defendant of intention to accept evidence on factor on

which upward departure based); United States v. Clements,

(5th Cir. 1996) (notice reasonable because district

court faxed notice of intention to consider upward departure,

identified factual basis for departure at sentencing hearing the

next day, and rescheduled sentencing for six days later); United

States v. Bachynsky,

(5th Cir. 1991), cert.

denied,

(1992) (notice adequate because defendant

apprised by PSR addendum seven days prior to sentencing of specific

upward departure grounds relied on).

Because Brooks was not given an opportunity to comment

consistent with Rule 32, we VACATE the sentence and REMAND for

resentencing, including giving Brooks and the Government notice and

an opportunity to respond to, and otherwise comment on, the noticed

possible grounds for departure. See Pankhurst,

.

(Brooks suggests that, if his case is so remanded, it be assigned

to a different judge. He falls far short of showing reassignment

is warranted. See United States v. Winters,

(5th Cir.), cert. denied,

(1999).)

B.

Brooks claims the court violated Rule 32 and his due process

rights by denying his request for copies of the victims’ letters.

We review de novo. United States v. Myers,

(5th

Cir. 1998).

8 Rule 32 protects the right to due process by requiring

disclosure of most information relied on at sentencing. See FED.

R. CRIM. P. 32(c)(3)(A). If the district court receives information

that is excluded from the presentence report under Rule 32(b)(5),

it is required to summarize the information in writing if it is to

be relied on at sentencing. FED. R. CRIM. P. 32(c)(3)(A).

The court relied primarily on

and 3664 in

denying Brooks’ request. These statutes pertain to restitution to

victims of certain crimes and the procedure for the issuance and

enforcement of such orders. In particular, § 3664(d)(4) provides:

After reviewing the report of the probation officer, the court may require additional documentation or hear testimony. The privacy of any records filed, or testimony heard, pursuant to this section shall be maintained to the greatest extent possible, and such records may be filed or testimony heard in camera.

(d)(4) (emphasis added).

Brooks does not assert that § 3664(d)(4) did not authorize his

being denied access to the letters. In fact, he does not address

the statute’s applicability. Moreover, he has not shown why the

PSR summaries of the letters do not satisfy Rule 32(c)(3)(A).

Instead, Brooks maintains the court violated his due process

right to be sentenced on information that is neither false nor

materially incorrect. However, he has made no showing that the

information excerpted from the letters and relied on by the

9 district court is false or materially incorrect. See United States

v. Davis,

(5th Cir. 1996) (“The defendant bears the

burden of demonstrating that information the district court relied

on in sentencing is materially untrue.” (internal quotation and

citation omitted)).

The district court did not violate Rule 32 or Brooks’ due

process rights by denying his request for copies of the victims’

letters.

C.

Finally, Brooks contends that the Government breached the plea

agreement by failing to recommend his being sentenced within the

guideline range stipulated by the parties. We review only for

plain error, because Brooks did not raise this issue at sentencing.

(On appeal, he requests specific performance of the agreement; he

does not request withdrawal of his guilty plea. Cf. United States

v. Palomo,

(5th Cir.), cert. denied,

(1993).)

The plea agreement provided the parties would stipulate to a

calculation of the maximum potential guidelines; although not

binding on the district court, the stipulated guidelines were the

same as set forth in the PSR. The agreement also stated: “The

sentence in this case will be imposed by the Court. There is no

agreement as to what that sentence will be”. (Emphasis added.)

The agreement did not obligate the Government to take any action on

10 Brooks’ behalf in the event of an upward departure. There is no

error, much less plain error.

III.

For the foregoing reasons, we VACATE the sentence and REMAND

for re-sentencing.

VACATED AND REMANDED

11