                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                                                              October 23, 2006
                        FOR THE FIFTH CIRCUIT
                        _____________________             Charles R. Fulbruge III
                                                                  Clerk
                             No. 05-51015
                        _____________________

UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

                               versus

WILLIAM DUWAYNE DEAN, III,

                                           Defendant - Appellant.
_________________________________________________________________

           Appeal from the United States District Court
              for the Western District of Texas, Waco
                       USDC No. 6:05-CR-45-1
_________________________________________________________________

Before JOLLY, DAVIS, and BENAVIDES, Circuit Judges.

PER CURIAM:1

     William Duwayne Dean, III (“Dean”) pled guilty to possession

of more than five grams of cocaine base.         Based on his prior

criminal history, the district court sentenced him to 120 months in

prison and five years of supervised release.     Dean timely appealed

the sentence.   Finding no error, we affirm.

                                  I

     After Dean’s guilty plea, the U.S. Probation Office assigned

him a base offense level of 26 and deducted three points for

acceptance of responsibility, to reach a total offense level of 23.



     1
      Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Dean’s criminal history level was VI, rendering his Sentencing

Guidelines range 92 to 115 months.    At the sentencing hearing, the

district court adopted the probation officer’s recommendations,

listened to Dean’s counsel argue for a more lenient sentence, and

then, “based on [Dean’s] prior criminal history and criminal

history score,” imposed a term of 120 months.    In its Statement of

Reasons, the district court indicated it was imposing “a sentence

outside the sentencing guideline system.”

                                 II

     The two issues Dean raises on appeal are (1) whether the

district court erred in giving him a sentence longer than the

guideline range and (2) whether the district court erred in not

giving him notice it was considering doing so.     Because Dean did

not object below, we review each of these challenges for plain

error.   United States v. Jones, 444 F.3d 430, 436 (5th Cir. 2006).

This means that Dean has the burden of showing an error, that is

plain, and that affected his substantial rights.    Id.

                                 A

     To resolve Dean’s first challenge, we must first determine

whether the 120-month sentence is an upward departure within the

Guidelines system or a non-Guidelines sentence. The parties appear

to have assumed it to be the former but, as noted above, the court

stated that the sentence is “outside the sentencing guidelines

system.”   Even if this statement was not clear, however, when a

district court does not clearly state whether it imposed a non-

                                 2
Guidelines sentence or merely departed within the Guidelines, we

assume that the district court imposed a non-Guidelines sentence.

United States v. Smith, 440 F.3d 704, 708 n.3 (5th Cir. 2006);

United States v. Armendariz, 451 F.3d 352, 358 n.5 (5th Cir. 2006).

Therefore we analyze this as a non-Guidelines sentence.

     After United States v. Booker,2 we review non-Guidelines

sentences for reasonableness.        United States v. Mares, 402 F.3d

511, 520 (5th Cir. 2005). However, “the district court must more

thoroughly articulate its reasons when it imposes a non-Guideline

sentence.”    Smith, 440 F.3d at 707.       Such “reasons should be fact-

specific and consistent with the sentencing factors in [18 U.S.C.

§] 3553(a).”        Id.    “The farther a sentence varies from the

applicable     Guidelines    sentence,      the       more   compelling    the

justification ... must be.”       Id. (citation omitted).        The district

court’s reasons must enable this court “to determine whether, as a

matter   of   substance,    the   factors    in   §    3553(a)   support   the

sentence.”    Id.

     In this case, the district court imposed the non-Guidelines

sentence based on Dean’s criminal history.             Because a defendant’s

criminal history is one of the factors that a court may properly

consider, Smith, 440 F.3d at 709, and especially in the light of

the fact that the deviation was only five months, we have no




     2
      543 U.S. 220 (2005).

                                     3
difficulty     concluding     that    Dean’s    120-month      sentence    was

reasonable.

                                       B

     Dean also argues that he was prejudiced by a lack of notice

and opportunity to respond to the sentence outside the Guidelines.

He was first informed that the court was considering his unusually

high number of criminal history points at the sentencing hearing,

just a few seconds before the court imposed the 120-month sentence.

This gave Dean practically no time to formulate arguments against

the longer sentence.        As noted, however, Dean did not object on

this basis at the hearing itself.          Thus our standard of review is

plain error.    Jones, 444 F.3d at 436.

     To meet his burden under this standard, Dean must show an

error that is plain (i.e., “clear under current law”3) and that

affected his substantial rights. See id.         When imposing a sentence

that is an upward departure within the Guidelines, Federal Rule of

Criminal Procedure 32(h) requires the district court to “give the

parties reasonable notice.”4         FED. R. CRIM.   P.   32(h).   Four of our

sister circuits have held that Rule 32(h) also applies to non-

     3
      United States v. Olano, 507 U.S. 725, 734 (1993).
     4
      In its entirety, the rule states: “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.” This rule codifies the holding of Burns v. United
States, 501 U.S. 129 (1991).

                                       4
Guidelines   sentences.5      Three    other      circuits,    however,   have

determined   that   Rule    32(h)   does    not   apply   in   non-Guidelines

sentencing circumstances,6 while two others found that the law is

unclear and therefore any error could not be “clear under current

law.” United States v. Mateo, 179 Fed. App’x. 64, 65 (1st Cir. May

5, 2006) (unpublished); see also United States v. Reddick, No. 05-

11363, 2006 WL 1683461, *5 (11th Cir. June 20, 2006) (unpublished).

The Eleventh and First Circuits have observed that given that there

is “no binding or persuasive precedent to the contrary,” Reddick at

*5, the lack of notice is not error that is “clear under current

law.” Therefore we find no plain error as to Dean’s 120-month non-

Guidelines sentence.       We need not (and do not) express an opinion

on whether Rule 32(h) applies to non-Guidelines sentences.

                                      III

     For the foregoing reasons, the non-Guidelines sentence imposed

by the district court is

                                                                    AFFIRMED.




     5
      United States v. Anati, 457 F.3d 233, 234-37 (2d Cir. 2006);
United States v. Evans-Martinez, 448 F.3d 1163, 1167 (9th Cir.
2006); United States v. Davenport, 445 F.3d 366, 371 (4th Cir.
2006); United States v. Dozier, 444 F.3d 1215, 1218 (10th Cir.
2006).
     6
      See United States v. Vampire Nation, 451 F.3d 189, 197-98 (3d
Cir. 2006); United States v. Walker, 447 F.3d 999, 1005-07 (7th
Cir. 2006); United States v. Sitting Bear, 436 F.3d 929, 932 (8th
Cir. 2006).

                                       5
