United States v. Jesus Norberto Evans-Martinez

Defendant Jesus Evans-Martinez was sentenced to 15 years imprisonment after pleading guilty to sexual abuse of a minor, sexual exploitation of minors and witness tampering. Evans-Martinez timely appeals his sentence on the ground that the district court failed to provide adequate notice of its intent to sentence him above the term suggested by the Sentencing Guidelines. Fed. R. Crim. P. 32(h) requires that a district court provide notice of the potential it will sentence outside the Sentencing Guidelines range. We have not yet had occasion to decide whether this requirement survives United States v. Booker, 543 U.S. 220 , 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005).

We hold that it does. We vacate the sentence and remand for resentencing.

I

In November 2002, the FBI began investigating Evans-Martinez for suspected participation in activities related to child pornography on the internet. At the time, he was an active duty member of the United States Array living in Hawaii with his wife and three children, two daughters and a son. As a result of the investigation, the FBI identified Evans-Martinez as the owner of an e-mail account responsible for sending hundreds of e-mails, some of…