Hinojosa-Gonzalez

ORDER

The opinion filed December 31, 1997 is withdrawn, and the attached opinion filed in its place.

With this change, the panel votes to deny the petition for rehearing and reject the suggestion for rehearing en banc.

The full court has been advised of the suggestion for rehearing en banc and no active judge has requested a vote on whether to rehear the matter en banc. See Fed. R.App. P. 35.

The petition for rehearing is denied and the suggestion for rehearing en banc is rejected.

OPINION

Following his plea of guilty to four drug possession counts under 21 U.S.C. § 841 (a)(1), and one conspiracy to possess with intent to distribute count under 21 U.S.C. §§ 841 (a)(1), 846, Carlos Hinojosa-Gonzales was sentenced to 480 months in prison and 20 years of supervised release, and was fined $3 million. He appeals his sentence. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742 (a).

I

Hinojosa argues the district court failed to provide him with adequate notice of the grounds for its decision to grant the Government’s upward departure motion, as required by Federal Rule of Criminal Procedure 32. See Burns v. United States, 501 U.S. 129, 138 , 111 S.Ct. 2182,…