Unpublished Disposition, 932 F.2d 973 (9th Cir. 1991)

No. 90-30335.

United States Court of Appeals, Ninth Circuit.

Before EUGENE A. WRIGHT and O'SCANNLAIN, Circuit Judges, and MACBRIDE,^**  District Judge.

MEMORANDUM^*** 

This sentencing appeal stems from a tragic car accident that killed three persons. The defendant pleaded guilty to three counts of involuntary manslaughter and two counts of vehicular assault. She appeals the court's upward departure from the applicable Sentencing Guideline range.

* Joan Francine Clampitt collided head-on with a mini-van driven by Marguerite Miller. Two of the three young children in Clampitt's truck and the passenger in Miller's van were killed. The other child, Miller and Clampitt were injured. At the time of the accident, tests indicated that Clampitt's blood alcohol level was .252. Miller's was zero.

Clampitt's expert witness estimated that Miller was traveling about 75 m.p.h. The police concluded that both women were traveling about 55 m.p.h. The presentence report (PSR) also indicated that before the collision, Clampitt had a close call with another vehicle when she swerved into the oncoming lane.

At sentencing, the court reduced her base offense level by two points for acceptance of responsibility, but departed upward by two points, sentencing her to 33 months imprisonment. This court reviews de novo the legality of a sentence. United States v. Rafferty, 911 F.2d 227, 229 (9th Cir. 1990).

II

Clampitt argues that, contrary to 18 U.S.C. § 3553(d) (1988) and Fed. R. Crim. P. 32(a) (1), she was not given notice of factors used by the court to depart upward from her adjusted base offense level. Before a sentencing court departs upward, the defendant must have notice from the PSR or the court of factors to be considered for departure. United States v. Nuno-Para, 877 F.2d 1409, 1415 (9th Cir. 1989). The relevant information "must be identified as a basis for departure ..., or, the court must advise the defendant that it is considering departure based on a particular factor and allow defense counsel an opportunity to comment." Id. (citation and footnote omitted); United States v. Rafferty, 911 F.2d 227, 230 (9th Cir. 1990).

The court departed upward under Sentencing Guidelines Secs. 5K2.1 (death), 5K2.2 (physical injury) and 5K2.14 (public welfare). Because the addendum to the PSR discussed the departure suggestions under Secs. 5K2.1 and 5K2.2, we conclude that Clampitt received adequate notice of departure on those grounds.

Although the government's objection to the PSR mentions that after drinking all afternoon Clampitt may have been warned by friends not to drive and that she had a close call with another vehicle prior to the accident, it says nothing about using those factors for departure. At the sentencing hearing, neither the government nor the court mentioned departure for these factors. Nevertheless, a basis for departure was Clampitt's actions, which "significantly endangered public safety and placed at risk anyone who may have come into contact with [her] on public highways."

It was not enough that an upward departure based on those factors was "readily apparent" from the PSR. See Rafferty, 911 F.2d at 230. Because Clampitt received no notice that warnings from others and her close call with another vehicle might be used to justify a departure, we vacate her sentence and remand for resentencing.¹  Rafferty, 911 F.2d at 230 & n. 4.

We VACATE Clampitt's sentence and REMAND for RESENTENCING.