UNITED STATES of America, Appellee, v. Timothy FRENCHIE, also known as Timothy Neal, also known as Timothy Frenchy, Defendant-Appellant, 194 F. App'x 63

SUMMARY ORDER Defendant-Appellant Timothy Frenchie appeals from a September 26, 2005 judgment entered by the District Court convicting Frenchie, pursuant to his plea of guilty, of two counts of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(

g) and sentencing Frenchie principally to 33 months of imprisonment. We assume the parties’ familiarity with the underlying facts and procedural history. The District Court found that the proper sentencing range pursuant to the United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”) spanned from 12 to 18 months of imprisonment. At the sentencing hearing, the District Court then announced its intention to impose a non-Guidelines sentence as envisaged by United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

Finding that Frenchie constituted a danger to the public, the District Court sentenced him principally to 33 months of imprisonment. The District Court had not notified Frenchie prior to the sentencing hearing that it was considering imposing a sentence above the applicable Guidelines range, nor had any submission of the prosecution explicitly requested a sentence above the Guidelines range. Frenchie challenges his sentence on the ground that the District Court erred in not providing him with prior notice of its intention to impose a non-Guidelines sentence above the applicable Guidelines range.

He relies primarily on Federal Rule of Criminal Procedure 32(h), which requires advance notice before a sentencing judge may impose an upward departure under the Guidelines, and Rule 32(i)(l)(C), which requires that a sentencing judge “allow the parties’ attorneys to comment on the probation officer’s determinations and other matters relating to an appropriate sentence.” In a recent case in which a defendant challenged his sentence on grounds similar to those raised by Frenchie, we held that a sentencing judge must provide advance notice to a defendant before imposing a sentence above the Guidelines range, regardless of whether the sentence is a “non-Guidelines” sentence or a “Guidelines sentence” incorporating an upward departure.

See United States v. Anati, 457 F.3d 233 (2d Cir.2006); see also Burns v. United States, 501 U.S. 129, 135, 111 S.Ct. 2182, 115 L.Ed.2d 123 (1991). Anati, which was decided ten months after the District Court imposed Frenchie’s sentence, requires a remand in this case. For the foregoing reasons, the case is REMANDED with directions to vacate the sentence and resentence in light of Anati. .

We intimate no view concerning the District Court’s determination of the correct Guidelines range, which neither party challenges on appeal, and make no conclusions concerning the applicability of U.S.S.G. § 2K2.1 to Frenchie’s New York State Youthful Offender Adjudication for robbery.