                Not for Publication in West's Federal Reporter
              Citation Limited Pursuant to 1st Cir. Loc. R. 32.1.0

          United States Court of Appeals
                        For the First Circuit

No. 05-2329

                      UNITED STATES OF AMERICA,

                                 Appellee,

                                      v.

                           JOSEPH NICOLELLA,

                         Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF RHODE ISLAND

          [Hon. Ernest C. Torres, U.S. District Judge]


                                   Before

                       Lipez, Circuit Judge,
                 Campbell, Senior Circuit Judge,
                    and Howard, Circuit Judge.


     Robert Little on brief for appellant.
     Donald C. Lockhart and Gerard B. Sullivan, Assistant U.S.
Attorneys, and Robert Clark Corrente, United States Attorney, on
brief for appellee.


                            January 12, 2007
           Per Curiam.      Joseph Nicolella ("Nicolella") appeals from

his 108-month, bottom-of-guidelines sentence on the grounds that

the district court erred in applying the kidnapping guideline and

that the resulting sentence was unreasonably high.1             After careful

consideration of the parties' briefs and the underlying record, we

affirm the sentence for the reasons discussed below.

           In return for Nicolella's pleading guilty to two counts

of interstate domestic violence and two counts of interstate

violation of a protection order, the government dismissed a fifth

count of kidnapping arising from the same incident of domestic

violence as the other counts.           As Nicolella concedes, despite the

dismissal of the kidnapping count, it was permissible for the

district court to consider the conduct underlying that count in

sentencing.     See USSG § 1B1.3 comment. (backg'd); United States v.

Marks, 365 F.3d 101, 107 n.4 (1st Cir. 2004).

           Nevertheless, Nicolella argues that the district court

erred in applying the kidnapping guideline in calculating his

advisory guideline range for three reasons.            First, he argues that

his   conduct   did   not   rise   to    the   level   of   kidnapping.   The

government makes a strong argument that Nicolella waived that




      1
      He also argues that United States v. Booker, 543 U.S. 220
(2005), was wrongly decided but recognizes that this court has no
power to address that claim.

                                        -2-
argument by first raising it and then abandoning it at sentencing.2

See United States v. Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002)

(finding it difficult to conceive of a more conspicuous example of

a [waiver]" than when "[a] party . . . identifies an issue, and

then explicitly withdraws it").                 Moreover, as the district court

recognized, the absence of aggravating factors, such as a ransom

demand, sexual assault, or use of a dangerous weapon, does not mean

that the conduct did not constitute a kidnapping but only that no

enhancement based on such factors was warranted.                            See USSG §

2A4.1(b)(1)-(5).

               Nicolella's second argument is that the district court

erred in applying the kidnapping guideline, USSG § 2A4.1, rather

than the stalking or domestic violence guideline, USSG § 2A6.2.

While       Nicolella   is    correct     in    starting      with    the   stalking    or

domestic violence guideline, which applies to his offenses of

conviction under USSG App. A, his argument ignores or misreads the

cross-reference contained in that very guideline.

               That cross-reference, which the district court applied,

provides that "[i]f the offense involved the commission of another

criminal offense, [the court should] apply the offense guideline .

.   .   most    applicable      to   that      other   criminal       offense,   if    the

resulting       offense      level   is   greater      than    that    determined      [by


        2
      By the end of the sentencing hearing, defense counsel had
conceded that "the elements of kidnapping are there" and no longer
disputed "[t]he fact that the kidnapping was present."

                                            -3-
application    of   the   base   offense    level      and    specific   offense

characteristics for stalking or domestic violence]."                     USSG §

2A6.2(c)(1) (emphasis added).        Here, as discussed above, there is

no question that the offenses of conviction involved the commission

of kidnapping, that the guideline most applicable to the offense of

kidnapping is section 2A4.1, and that the resulting offense level

under the kidnapping guideline is greater than that determined

under the stalking or domestic violence guideline.3               Accordingly,

the district court correctly applied the kidnapping guideline in

determining Nicolella's offense level.

            Nicollela's third argument, raised for the first time on

appeal, is that, because use of the kidnapping cross-reference

dramatically    increased    his    sentence,    the     district    court   was

required to find the underlying facts by clear and convincing

evidence.     The short answer to that argument is that even if a

higher standard of proof were constitutionally required in these

circumstances--a     question      that    we   need    not     decide   here4--


     3
      Under the kidnapping guideline, Nicolella's offense level was
32, USSG § 2A4.1(a), while under the domestic violence guideline,
even with a four-level increase for aggravating factors, his
offense level would have been only 22, USSG § 2A6.2(a),(b).
     4
      Before Booker, we rejected that argument, United States v.
Lombard, 102 F.3d 1, 4-5 (1st Cir. 1996), and have not had occasion
to revisit it since then. Other circuits that have considered this
argument post-Booker have reached varying conclusions. See United
States v. Reuter, 463 F.3d 792, 792-93 (7th Cir. 2006) (collecting
cases).   Under those circumstances, any error in applying the
preponderance of the evidence standard would not be sufficiently
"plain" to warrant relief based on this unpreserved claim. See

                                     -4-
Nicolella's admission of the underlying facts and his concession

that the elements of kidnapping were met renders the standard of

proof irrelevant.

            As   a   fallback    argument,    Nicolella     argues    that   his

resulting    108-month    sentence   was     unreasonably    high    under   the

standards we articulated in United States v. Jiménez-Beltre, 440

F.3d 514, 517 (1st Cir. 2006) (en banc).           Specifically, he argues

only that, in declining to impose a lesser sentence, the district

court "outweighed the severity of his crime."               That argument is

meritless.    The district court's characterization of the crime as

"very, very serious" is amply supported by the record--including

gruesome    photographs    and   graphic     grand-jury   testimony     of   the

victim--indicating that Nicolella repeatedly struck her in the face

and threatened to kill her if she attempted to escape.               On appeal,

Nicolella points to no countervailing factors.            And, in any event,

the amount of weight given to the relevant factors is for the

district court, not an appellate court, to determine.                   United

States v. Dixon, 449 F.3d 194, 205 (1st Cir. 2006).

            Affirmed.     See 1st Cir. Loc. R. 27.0(c).




United States v. Diaz, 285 F.3d 92, 97 (1st Cir. 2002).

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