Mora-Angel

MEMORANDUM *

Humberto Mora-Angel (“Mora-Angel”) appeals his 50 month sentence imposed by the district court following his guilty plea to one count of transporting illegal aliens and aiding and abetting the same, in violation of 8 U.S.C. §§ 1324 (a)(1)(A)(ii) and (v)(II). We have jurisdiction pursuant to 28 U.S.C. § 1291 . We vacate and remand for re-sentencing.

Mora-Angel argues that the district court erred in failing to give him adequate notice of its intent to depart upward from the guideline range that applied to his offense. 1 We agree.

Federal Rule of Criminal Procedure 32(h) provides that “the court must give the parties reasonable notice that it is contemplating such a departure. The notice must specify any ground on which the court is contemplating a departure.” We recently held in United States v. Evans-Martinez, 448 F.3d 1163, 1167 (9th Cir. 2006), that this rule applies post-United States v. Booker, 543 U.S. 220 , 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005).

Because Mora-Angel did not object to lack of notice at his sentencing hearing, we review his claim for plain error. See Evans-Martinez, 448 F.3d at 1166 . Plain *955 error is “(1) error, (2) that is plain, and (3)…