United States v. Gary Alvin Hedberg, Aka/dennis J. Antenucci

Gary Alvin Hedberg appeals from the district court’s sentence of twenty-seven months imposed after Hedberg pleaded guilty to one count of wire fraud in violation of 18 U.S.C. § 1343 , one count of misapplication of bank funds in violation of 18 U.S.C. § 656 , and one count of mail fraud in violation of 18 U.S.C. § 1341 . Specifically, Hedberg argues that the district court improperly applied an upward departure from the Sentencing Guidelines.

Hedberg argues that the district court did not give him adequate notice that it would consider the exploitation of “third-party” victims as a basis for departing from the Guidelines. We have previously determined that “Fed.R.Crim.P. 32(a)(1) and section 3553(d) indicate that the presen-tence report or the court must inform the defendant of factors that they consider to constitute grounds for departure.” United States v. Nuno-Para, 877 F.2d 1409, 1415 (9th Cir.1989) (citing United States v. Otero, 868 F.2d 1412, 1415 (5th Cir.1989)). To satisfy the notice requirement, it is not necessary that the defendant be notified by the trial court of the possibility of an upward departure prior to the sentencing hearing. See United States v. Michael,…