Unpublished Disposition, 925 F.2d 1471 (9th Cir. 1989)

MEMORANDUM^** 

Allen LaValley challenges his September 7, 1989 resentencing ("the 1989 sentence") under the United States Sentencing Guidelines ("Guidelines") following his conviction by guilty plea for possession of a controlled substance in violation of 21 U.S.C. § 844(a). LaValley contends the district court erred in departing upward from the applicable Guidelines range. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We vacate the 1989 sentence and remand to the district court for resentencing.

* "A federal appellate court 'has a special obligation to satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review, even though the parties are prepared to concede it.' " United States v. Jones, 852 F.2d 1235, 1237 (9th Cir. 1988) (quoting Bender v. Williamsport Area School Dist., 475 U.S. 534, 541 (1986) (internal quotation here omitted)). The present appeal presents two jurisdictional questions not raised by the parties: (1) whether the district court had jurisdiction to resentence LaValley after he filed a timely notice of appeal following his initial sentencing on December 22, 1988 ("the 1988 sentence"), and (2) whether this court has jurisdiction to review the 1989 sentence.

This court reviews de novo a district court's assumption of jurisdiction. Jones, 852 F.2d at 1237. Although a district court ordinarily should not entertain a 28 U.S.C. § 2255 motion while a direct criminal appeal is pending in the same case, this general rule is not jurisdictional. See Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir.), cert. denied, 488 U.S. 982 (1988); United States v. Taylor, 648 F.2d 565, 572 (9th Cir.), cert. denied, 454 U.S. 866 (1981). Five months after LaValley timely filed his notice of appeal from the 1988 sentence, he filed a section 2255 motion with the district court requesting that he be resentenced under the Guidelines. See United States v. Eatinger, 902 F.2d 1383, 1384-85 (9th Cir. 1990) (prisoner entitled to resentencing under Guidelines may seek remedy under section 2255). The district court granted this motion and eventually imposed the 1989 sentence. The district court had subject matter jurisdiction to do so, despite the pending appeal. See Taylor, 648 F.2d at 572. Whether or not the district court should have considered the motion is not presented by the parties for our review.

When a party files a document within the time provided by Fed. R. App. P. 4, this court will consider the document to be a notice of appeal when it shows that the filing party intended to appeal and the document is served on the other parties to the litigation. Munden v. Ultra-Alaska Assocs., 849 F.2d 383, 387 (9th Cir. 1988). This lenient standard, which is not always available, applies when liberty is at stake, even though the appealing party may be represented by counsel. See id. at 387-88; Cel-A-Pak v. California Agricultural Labor Relations Bd., 680 F.2d 664, 667 (9th Cir.), cert. denied, 459 U.S. 1071 (1982). After LaValley timely appealed the 1988 sentence, he successfully moved this court to stay appellate proceedings pending resentencing. Rather than filing a new notice of appeal once the 1989 sentence was imposed, LaValley sought resumption of the stayed proceedings by filing in this court a "Motion to Reset Briefing Schedule." This is the only document which could be construed as a timely notice of appeal from the 1989 sentence. In deciding whether to construe it as such, we will apply the lenient standard because liberty is at stake.¹ 

There can be no doubt from the motion filed after resentencing that LaValley intended to appeal the 1989 sentence. This motion essentially requested that the appellate proceedings, which had been properly initiated with a timely notice of appeal and stayed for the purpose of resentencing, resume for the purpose of reviewing the new sentence. The motion refers to the resentencing proceeding. Furthermore, the briefs of both parties are devoted to the 1989 sentence, indicating that the government was apprised of the issue on appeal and that it was not prejudiced by the absence of a formal notice of appeal. Finally, LaValley's motion was accompanied by an affidavit attesting to service of the motion on the government. Accordingly, we will consider LaValley's "Motion to Reset Briefing Schedule" as a timely notice of appeal from the 1989 sentence. See Munden, 849 F.2d at 387.

II

We review the legality of a criminal sentence de novo. United States v. Rafferty, 911 F.2d 227, 230 (9th Cir. 1990). Prior to sentencing, a defendant must be given notice of, and an opportunity to respond to, the district court's intent to depart upward from the range recommended by the Guidelines. Id. Failure to provide such notice and opportunity violates Fed. R. Crim. P. 32(a) (1). Id. As in Rafferty, the government concedes here "that there is no record that notice was given prior to the court departing upward." Independent review of the record confirms this representation. Accordingly, the 1989 sentence must be vacated, and the case remanded for resentencing. See id.² 

If, on remand, the district court again decides to depart upward for the same reasons stated in support of the 1989 sentence, we note that the district court must find that the Guidelines fail to take these reasons into account before the court may rely on them as bases for an upward departure. United States v. Michel, 876 F.2d 784, 786 (9th Cir. 1989) (" [a]bsent such a finding, departure is not permitted"). Furthermore, if an upward departure is in order, the district court must explain the extent of the departure, analogizing to the Guidelines wherever possible. United States v. Ward, 914 F.2d 1340, 1348 (9th Cir. 1990). Finally, the district court may rely on substance abuse as a basis for an upward departure only in exceptional cases presenting extraordinary circumstances. United States v. Richison, 901 F.2d 778, 781 (9th Cir. 1990).

VACATED and REMANDED.