Phillips

MEMORANDUM *

Henry Alexander Phillips (“Phillips”) appeals his 12 month sentence imposed by the district court following his guilty plea to one count of importing marijuana in violation of 21 U.S.C. §§ 952 , 960. We have jurisdiction pursuant to 28 U.S.C. § 1291 . We vacate and remand for re-sentencing.

Phillips 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 82(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 Phillips did not object to lack of notice at sentencing, we review his claim for plain error. See Evans-Martinez, 448 F.3d at 1166 . Plain error is “(1) error, (2) that is plain, and (3) that affects substantial rights.” Id. If plain error occurred, relief is…