                   Not for Publication in West's Federal Reporter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


                                       -3-
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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