United States v. Mateo ( 2006 )

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 05-1805
UNITED STATES OF AMERICA,
Appellee,
v.
ANTONIO MATEO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Selya, Circuit Judge,
Hug,* Senior Circuit Judge,
and Howard, Circuit Judge.
Laura Maldonado Rodriguez for appellant.
Nelson Pérez-Sousa, Assistant United States Attorney, Senior
Appellate Attorney, United States Attorney's Office, with whom
H.S. Garcia, United States Attorney, was on brief, for appellee.
May 5, 2006
*
Of the Ninth Circuit, sitting by designation.
Per Curiam. Antonio Mateo brings this appeal to
challenge the sentence imposed on him after he pleaded guilty to
being found within the United States without authorization
following his removal or deportation as an alien convicted of an
aggravated felony. See 8 U.S.C. § 1326(b)(2). Mateo says that the
district court erred in sentencing him above the applicable
guideline sentencing range without providing him with pre-hearing
notice of the contemplated ground for that action. Cf. Fed. R.
Crim. P. 32(h) ("Before the court may depart from the applicable
sentencing range on a ground not identified for departure either in
the presentence report or in a party's prehearing submission, 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."). Mateo was
sentenced after the Supreme Court's decision in United States v.
Booker, 125 S. Ct. 738 (2005), so he is implicitly asking us to
hold that a sentence outside the applicable guidelines sentencing
range either constitutes a "departure" for purposes of Rule 32(h)
or should, at least, be subject to the same notice rule.
The issue is interesting, but we could not vacate Mateo's
sentence, whether or not we agree with his reading of the Rule.
Mateo did not object to the absence of notice before the district
court, so our review is for plain error, see United States v.
Mangone, 105 F.3d 29, 35 (1st Cir. 1997), unless Mateo was not
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afforded a sufficient opportunity to present to the district court
the argument which forms the basis of this appeal, see United
States v. Cortes-Claudio, 312 F.3d 17, 24 (1st Cir. 2002); United
States v. Gallant, 306 F.3d 1181, 1188-89 (1st Cir. 2002). Mateo
cites to Cortes-Claudio, but he makes no developed argument that he
was placed in a similar situation. See United States v. Zannino,
895 F.2d 1, 17 (1st Cir. 1990). Moreover, Mateo did have an
opportunity to discuss with the court the appropriateness of his
sentence after its imposition. Under the circumstances, our review
is for plain error pursuant to Fed. R. Crim. P. 52(b).
Under Rule 52(b), we are empowered to correct the alleged
error only if it was "plain," which requires that the error be
"clear under current law." United States v. Olano, 507 U.S. 725,
734 (1993). Here, no such claim can be made. Neither the Supreme
Court nor this court has ruled on whether and to what extent the
notice requirement of Rule 32(h) survives Booker, and the circuits
that have discussed the issue have reached varying conclusions.
Compare, e.g., United States v. Long Soldier, 431 F.3d 1120, 1122
(8th Cir. 2005) (post-Booker, the Rule 32(h) notice requirement
does not apply to a "variance" above the applicable guidelines
sentencing range); United States v. Simmerer, No. 05-11144 (11th
Cir. Nov. 16, 2005) (unpublished opinion) (post-Booker, failure to
give prior notice under Rule 32(h) of a contemplated upward
"variance" from the guidelines sentencing range is not plain
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error), with, e.g., United States v. Davenport, __ F.3d __, 2006 WL
1044476, at *4 (4th Cir. April 21, 2006) (notice of intent to
depart or vary from guidelines remains a critical part of
sentencing); United States v. Dozier, __ F.3d __, 2006 WL 864877,
at *2 (10th Cir. Apr. 5, 2006) ("Rule 32(h) survives Booker and
requires a court to notify both parties of any intention to depart
from the advisory sentencing guidelines as well as the basis for
such a departure when the ground is not identified in the
presentence report or in a party's prehearing submission"); United
States v. Santos Monroy, 135 Fed. Appx. 190, 192-93 (10th Cir.
2005) (unpublished opinion) (post-Booker, a downward "departure"
without notice of the contemplated ground of departure violates
Rule 32(h)). If an error occurred here, it was not "plain" and
therefore was not subject to correction under Rule 52(b).
Affirmed.
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