                       FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                             No. 05-10280
                Plaintiff-Appellee,
               v.                                       D.C. No.
                                                     CR-03-00187-DAE
JESUS NORBERTO EVANS-MARTINEZ,
                                                        OPINION
             Defendant-Appellant.
                                               
          Appeal from the United States District Court
                   for the District of Hawaii
           David A. Ezra, District Judge, Presiding

                      Argued and Submitted
            April 7, 2006—San Francisco, California

                           Filed July 2, 2008

     Before: Robert R. Beezer and Raymond C. Fisher,
Circuit Judges, and Robert J. Timlin,* Senior District Judge.

                       Opinion by Judge Beezer




  *The Honorable Robert J. Timlin, Senior District Judge for the United
States District Court for the Central District of California, sitting by desig-
nation.

                                    8041
              UNITED STATES v. EVANS-MARTINEZ         8043


                       COUNSEL

Peter C. Wolff, Jr., Federal Public Defender and Alexander
Silvert, First Assistant Federal Public Defender, Honolulu,
Hawaii, for the defendant-appellant.

Edward J. Kubo, Jr., United States Attorney and Lawrence L.
Tong, Assistant United States Attorney, Honolulu, Hawaii,
for the plaintiff-appellee.
8044           UNITED STATES v. EVANS-MARTINEZ
                          OPINION

BEEZER, Circuit Judge:

   Defendant Jesus Evans-Martinez was sentenced to 15 years
imprisonment after pleading guilty to sexual abuse of a minor,
sexual exploitation of minors and witness tampering. Evans-
Martinez timely appeals his sentence on the ground that the
district court failed to provide adequate notice of its intent to
sentence him above the term suggested by the Sentencing
Guidelines. Fed. R. Crim. P. 32(h) requires that a district
court provide notice of the potential it will depart from the
Sentencing Guidelines range. We have not yet had occasion
to decide whether this requirement survives United States v.
Booker, 543 U.S. 220 (2005).

   We hold that it does. We vacate the sentence and remand
for resentencing.

                                I

   In November 2002, the FBI began investigating Evans-
Martinez for suspected participation in activities related to
child pornography on the internet. At the time, he was an
active duty member of the United States Army living in
Hawaii with his wife and three children, two daughters and a
son. As a result of the investigation, the FBI identified Evans-
Martinez as the owner of an e-mail account responsible for
sending hundreds of e-mails, some of which related to child
pornography and some of which depicted children in states of
undress or engaged in sexual conduct. Some of these e-mails
also advertised the creation of a Yahoo! group that would
contain “r@ygold,” a term commonly understood to refer to
child pornography. The e-mails stated that child pornography
would be posted to the group, and members could display,
view and download images and files. The e-mail also con-
tained a movie attachment that depicted a minor engaged in
sexual conduct.
               UNITED STATES v. EVANS-MARTINEZ             8045
   The FBI obtained a search warrant for Evans-Martinez’s
house and seized various pieces of computer equipment.
Agents also found cameras concealed in his daughters’ bed-
room and in the bathroom. Evans-Martinez subsequently met
with agents and, following a waiver of his constitutional
rights, gave a statement admitting to his participation in child
pornography-related activities. He also admitted to taking
photographs of his older daughter’s breasts and genitals while
she was sleeping, as well as taking photographs of himself
touching his daughter’s genitals while she was sleeping.
Evans-Martinez was arrested and, following his arrest, he
asked his wife to destroy various items still at their house,
including additional computer equipment and a physical item
used in the sexual abuse of his daughter. His wife complied.

   Evans-Martinez was indicted on charges of (1) sexual
abuse of a minor in violation of § 18 U.S.C. § 2243(a) for the
abuse of his oldest daughter; (2) sexual exploitation of minors
in violation of 18 U.S.C. § 2251(c) for sending the e-mails
advertising the creation of the Yahoo! group; and (3) witness
tampering in violation of 18 U.S.C. § 1512(b) for asking his
wife to destroy the potential evidence relevant to the child
pornography investigation.

   Evans-Martinez entered into a plea agreement in which he
pleaded guilty to the three charges in return for the Govern-
ment’s agreement not to seek additional charges against him.
The plea agreement described the maximum penalties avail-
able for his crimes, but memorialized stipulations the parties
reached as to sentence calculation under the Sentencing
Guidelines. Specifically, the plea agreement stated that the
Government expected to move for a downward departure on
the basis of Evans-Martinez’s cooperation. It also stated that
Evans-Martinez understood the district court would be bound
by the Sentencing Guidelines, but that the district court could
determine facts relevant to sentencing and would not be
bound by any stipulations entered into by the parties. Evans-
Martinez limited his right to appeal his sentence, but explic-
8046           UNITED STATES v. EVANS-MARTINEZ
itly reserved his right to appeal any upward departure from
the Guideline sentence.

   The district court formally accepted the guilty pleas and a
presentence report was prepared, which calculated a total
offense level of 19, a criminal history category of I and, on
the basis of a statutory minimum of 10 years for the second
count, a Guideline sentence of 10 years.

   After the parties entered into the plea agreement and the
initial presentence report was prepared, the Supreme Court
decided United States v. Booker, 543 U.S. 220 (2005), which
rendered the Sentencing Guidelines advisory in order to com-
ply with the Sixth Amendment. The presentence report was
amended to acknowledge that, post-Booker, the district court
was required to consider, but no longer bound by, the Guide-
lines. Evans-Martinez did not object to the amended presen-
tence report.

   At sentencing, the Government moved for a downward
departure on the basis of Evans-Martinez’s cooperation. The
Government noted that Evans-Martinez supplied law enforce-
ment agents with his e-mail password and, as a result, seven
other sexual predators in seven cities were identified, tried
and convicted. The district court accepted the plea agreement,
adopted the conclusions of the presentence report as amended
and “granted” the Government’s motion for a downward
departure. The court determined, however, that the motion
only “released” it from its obligation to impose a sentence at
or above the mandatory minimum sentence of 10 years and
that it was still able to sentence Evans-Martinez up to the stat-
utory maximum of 20 years. The district court commented on
the disturbing nature of the case and summarized the facts as
they were related in the presentence report. Taking into
account Evans-Martinez’s cooperation, the court then sen-
tenced him to a term of 15 years and a period of supervised
release.
                 UNITED STATES v. EVANS-MARTINEZ                     8047
                                    II

   Pre-Booker, we reviewed the adequacy of a district court’s
notice of its intent to upwardly depart de novo. United States
v. Hernandez, 251 F.3d 1247, 1250 (9th Cir. 2001). Because
Evans-Martinez failed to object at sentencing to the adequacy
of notice his claim is reviewed for plain error. Id.1

   “Plain error is ‘(1) error, (2) that is plain, and (3) that
affects substantial rights.’ ” United States v. Ameline, 409
F.3d 1073, 1078 (9th Cir. 2005) (en banc) (quoting United
States v. Cotton, 535 U.S. 625, 631 (2002)). If the failure to
provide notice is plain error, we will grant relief if it “seri-
ously affects the fairness, integrity, or public reputation of
judicial proceedings.” Id. (quoting Cotton, 535 U.S. at 631).

   [1] In Burns v. United States, 501 U.S. 129, 138 (1991), the
Supreme Court holds that “before the district court can depart
upward on a ground not identified as a ground for upward
departure either in the presentence report or in a prehearing
submission by the Government, Rule 32 requires that the dis-
trict court give the parties reasonable notice that it is contem-
plating such a ruling.” The Supreme Court further holds that
“[t]his notice must specifically identify the ground on which
the district court is contemplating an upward departure.” Id.
  1
    We reject Evans-Martinez’s argument that because he expressly
retained his right to appeal an upward departure in the plea agreement he
did not forfeit the error and plain error review does not apply. Evans-
Martinez confuses forfeiture and waiver. “Whereas forfeiture is the failure
to make the timely assertion of a right, waiver is the ‘intentional relin-
quishment or abandonment of a known right.’ ” United States v. Olano,
507 U.S. 725, 733 (1993) (quoting Johnson v. Zerbst, 304 U.S. 458, 464
(1938)). By reserving his right to appeal upward departures in the plea
agreement, Evans-Martinez insulated himself from a claim of waiver. To
avoid forfeiture, however, Evans-Martinez would have had to assert the
right in a timely manner, which is, at the sentencing hearing. His failure
to do so was a forfeiture and review is for plain error. See Hernandez, 251
F.3d at 1250; see also United States v. Garcia, 323 F.3d 1161, 1165 (9th
Cir. 2003).
8048              UNITED STATES v. EVANS-MARTINEZ
at 138-39. The Court’s decision in Burns was incorporated
into the Federal Rules of Criminal Procedure in the form of
Rule 32(h) by amendment in 2002. FED. R. CRIM. P. 32(h)
advisory committee’s note. Rule 32(h) requires that “[b]efore
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.” Rule 32(h) further requires that the notice “spec-
ify any ground on which the court is contemplating a depar-
ture.”

  [2] Although we have not previously held that the notice
requirement of Rule 32(h) survives Booker, the Government
conceded at oral argument that the district court’s failure to
provide notice constitutes plain error. We hold Rule 32(h)
requires that a district court provide notice of its intent to
depart from the applicable sentencing range suggested by the
Guidelines post-Booker, as it did pre-Booker.2 Accord United
States v. Dozier, 444 F.3d 1215 (10th Cir. 2006).

   [3] The district court’s plain error in failing to provide
notice of its intent to depart from the Guideline range “seri-
ously affect[ed] the fairness, integrity, or public reputation” of
the sentencing proceeding. See Ameline, 409 F.3d at 1078. In
Burns, the Supreme Court justifies the notice requirement by
explaining that Rule 32 “contemplates full adversary testing
of the issues relevant to a Guideline sentence[.]” 501 U.S. at
135. Because Rule 32 affords the defendant the right to com-
  2
    In United States v. Garcia, 323 F.3d at 1164, we hold that, when sen-
tencing a defendant following the revocation of probation, a court need not
provide notice before imposing a sentence above the range suggested by
the non-binding policy statements of Chapter 7. Garcia dealt explicitly
with a sentencing decision pursuant to Chapter 7 while the claim here
involves a sentencing decision pursuant to § 3553(a). Additionally, the
district court in Garcia determined that the defendant had, in fact, received
adequate notice. Id. at 1165. As such, Garcia has limited applicability to
the present question.
                 UNITED STATES v. EVANS-MARTINEZ                  8049
ment on an upward departure, the Court reasons that it is only
appropriate that a defendant be notified the district court is
considering such a departure. Id. at 135-36. Otherwise,
defense counsel, “reluctant to suggest such a possibility[,]”
might not comment on potential grounds for an upward depar-
ture and “a critical sentencing determination [would] go
untested by the adversarial process[.]” Id. at 137.

   [4] This rationale is unaffected by Booker’s mandate that
the Guidelines be applied in an advisory fashion. Post-Booker,
the district court must correctly calculate the applicable range,
which serves as a “starting point and the initial benchmark”
in sentencing. United States v. Carty, 520 F.3d 984, 991 (9th
Cir. 2008) (en banc) (quoting Kimbrough v. United States,
128 S. Ct. 558, 574 (2007)). The district court then has the
discretion to sentence both above and below the range sug-
gested by the Guidelines. United States v. Cantrell, 433 F.3d
1269, 1280 (9th Cir. 2006). Parties must receive notice the
court is contemplating a departure to ensure that issues with
the potential to impact sentencing are fully aired. Evans-
Martinez did not receive explicit notice that the district court
was contemplating departing upward from the 10 year term
suggested by the Guidelines; in fact he expected the exact
opposite in light of the Government’s statement in the plea
agreement that it intended to move for a downward departure.
We cannot be confident that the issues which impacted sen-
tencing were thoroughly tested as intended under Rule 32(h).
Accordingly, we remand for resentencing.3

   [5] At resentencing, the district court should apply the
Guidelines in a discretionary manner as directed by the
Supreme Court in Booker. See 543 U.S. at 261. We reject
Evans-Martinez’s argument that the district court should treat
the Sentencing Guidelines as mandatory on the basis of the
  3
   Because we vacate and remand for resentencing, we need not consider
Evans-Martinez’s alternative argument that his sentence was unreasonable
under Booker.
8050           UNITED STATES v. EVANS-MARTINEZ
plea agreement. Although the parties entered into the plea
agreement pre-Booker and the agreement memorialized the
then-existing state of the law that the Guidelines would apply,
the district court sentenced Evans-Martinez post-Booker. The
presentence report was amended to reflect the change in law
Booker effected and the district court treated the Guidelines
as advisory during sentencing. Evans-Martinez failed to
object to Booker’s applicability either before or at the time of
sentencing and we decline to grant the provision of the plea
agreement a significance now that it did not enjoy then. The
district court should sentence Evans-Martinez in a manner
consistent with this opinion and Booker. See United States v.
Mix, 442 F.3d 1191, 1195 (9th Cir. 2006).

                               III

   This conclusion is consistent with the Supreme Court’s
recent decision in Irizarry v. United States, No. 06-7517
(2008). Irizarry holds that Rule 32(h) does not require a sen-
tencing judge to provide notice before imposing a sentence at
“variance” with the Federal Sentencing Guidelines. Slip op.
at 8. In reaching that conclusion, the Supreme Court empha-
sizes the distinction between a variance and a departure.
Because Rule 32(h) requires notice when the district court is
contemplating a “departure,” “the rule does not apply to
§ 3553 variances by its terms.” Id. at 6. Rather, “ ‘[d]eparture’
is a term of art under the Guidelines and refers only to non-
Guidelines sentences imposed under the framework set out in
the Guidelines.” Id. Irizarry does not control the result in this
case because the district court here did not sentence at vari-
ance from the recommended Guidelines range based on Sec-
tion 3553(a) factors, but departed as the term was used when
Rule 32(h) was promulgated. By its own terms, the Irizarry
holding does not extend to sentencing departures under the
Guidelines.

  In light of Irizarry, it is arguable that the due process con-
cerns that led to the promulgation of Rule 32(h) are now
               UNITED STATES v. EVANS-MARTINEZ            8051
equally inapplicable to sentencing departures. We decline to
reach that conclusion. We understand the Supreme Court’s
distinction between a variance and a departure to be a mean-
ingful one. Further, the Irizarry Court implies that Rule 32(h)
continues to apply with respect to departures. See id. at 8
(“The fact that Rule 32(h) remains in effect today does not
justify extending its protections to variances . . . .” ). The
Supreme Court gives no indication that it disapproves of the
continued application of Rule 32(h) to departures in the post-
Booker era.

                              IV

  The district court failed to provide notice of its intent to
depart from the sentencing range suggested by the Sentencing
Guidelines as required by Rule 32(h).

  We VACATE the sentence and REMAND for resentencing
consistent with this opinion.
