            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                               FILED
                                                                             January 5, 2009
                                         No. 06-20254
                                                                         Charles R. Fulbruge III
                                                                                 Clerk


UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellee,

v.

ALAN MICHAEL ROSARIO,

                                                     Defendant-Appellant.




                      Appeal from the United States District Court
                           for the Southern District of Texas
                                     No. 4:05-CR-87




Before SMITH and SOUTHWICK, Circuit Judges, and ENGELHARDT, District
Judge.*

PER CURIAM:**

       Alan Rosario pleaded guilty of possession of a firearm by a convicted felon.


       *
           District Judge of the Eastern District of Louisiana, sitting by designation.
       **
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                       No. 06-20254

Based on several prior convictions, the presentence report calculated a criminal
history category of V. At sentencing, the district court determined that the ap-
plicable offense level was 18; the recommended guidelines range was therefore
51-63 months’ imprisonment. Because the court found that category V under-
stated the seriousness of Rosario’s criminal history, however, it made an upward
departure to criminal history category VI,1 resulting in a new guidelines range
of 57-71 months. The court then sentenced Rosario to 71 months.
       Rosario appeals on the ground that he did not receive the required pre-
sentencing warning that the court was contemplating an upward departure. He
did not raise that objection in the district court, however, so we review only for
plain error. FED. R. CRIM. P. 52(b).
       To prove plain error, Rosario must “show (1) there was error, (2) the error
was plain, (3) the error affected his ‘substantial rights,’ and (4) the error serious-
ly affected ‘the fairness, integrity or public reputation of judicial proceedings.’”
United States v. Jones, 489 F.3d 679, 681 (5th Cir. 2007) (quoting United States
v. Olano, 507 U.S. 725, 732, 734 (1993)). And to satisfy the “substantial rights”
prong, “in most cases . . . the error must have been prejudicial: It must have
affected the outcome of the district court proceedings.” Olano, 507 U.S. at 734.
Further, “[i]t is the defendant rather than the Government who bears the bur-
den of persuasion with respect to prejudice.” Id.
       If a district court is contemplating a departure “on a ground not identified
for departure either in the presentence report or in a party’s prehearing submis-


       1
         Rosario argues that raising “the criminal history category from V to VI based on addi-
tional information does not constitute an upward departure under the definition from the
Guidelines Manual.” That is incorrect. If a district court determines that “the defendant’s
criminal history category substantially under-represents the seriousness of the defendant’s
criminal history . . ., an upward departure may be warranted.” U.S.S.G. § 4A1.3(a)(1) (2004).
Further, the term “upward departure” in § 4A1.3 is given the same definition as it is elsewhere
in the guidelines. See U.S.S.G. § 41A.3 cmt. n.1 (2004) (cross-referencing general guidelines
definitions for the term “upward departure”).

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                                        No. 06-20254

sion, the court must give the parties reasonable notice that it is contemplating
such a departure.” FED. R. CRIM. P. 32(h). We considered whether failure to give
such notice was plain error in United States v. Jones, 444 F.3d 430, 443 (5th Cir.
2006). There, the defendant claimed that the lack of notice prevented him from
raising an objection to the upward departure. We found that even if the objec-
tion had been made, it was not “reasonably probable that the district court would
have chosen a lesser sentence . . . .” Id. We therefore affirmed, because the de-
fendant had not demonstrated prejudice. Id.2
       Although the court erred when it did not give notice of the potential depar-
ture,3 Rosario has not borne his burden of persuasion with respect to prejudice.
Specifically, he has failed to show (or even argue) that the error affected the out-
comeSSi.e., that he would have received a lower sentence had the district court
properly given notice.
       The judgment of sentence is therefore AFFIRMED.




       2
         See also United States v. Smith, No. 06-20123, 2007 WL 14664, at *2 (5th Cir. Jan. 3,
2007) (per curiam) (unpublished) (affirming sentence where evidence defendant would have
presented if given notice “would [not] have changed the sentence given by the district judge”),
cert. denied, 127 S. Ct. 2280 (2007).
       3
         We reject the government’s argument that “notice was not required because the dis-
trict court did not contemplate, nor did it impose, a sentence outside of the applicable Guide-
lines range.” The government apparently read the guidelines table to provide a range of 57-71
months for a total offense level of 18 and a criminal history score of V. In fact, the table pro-
vides for 51-63 months.

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