                                                       United States Court of Appeals
                                                                Fifth Circuit
                        REVISED MARCH 7, 2007                FILED
              IN THE UNITED STATES COURT OF APPEALS February 28, 2007
                        FOR THE FIFTH CIRCUIT         Charles R. Fulbruge III
                        _____________________                 Clerk
                             No. 05-11391
                        _____________________

UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee
     v.

OMAR MEJIA-HUERTA,   also known as Omar
Huerta-Mejia, also   known as Omar Mejia,
also known as Omar   Huerta, also known as
Ivan Mexia-Huerta,   also known as Omar Mexia,
                                              Defendant-Appellant
_________________________________________________________________
                          Consolidated with
                               06-10004
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee
     v.

ANASTACIO PANTOJA-ARELLANO, also known as
Andy Pantoja, also known as Armando
Puentes-Herrera, also known as Pedro
Garcia-Rodriguez,
                                              Defendant-Appellant
_________________________________________________________________
                          Consolidated with
                               06-10082
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee
     v.

JOSE ANDRES DEHUMA-SUAREZ,
                                                 Defendant-Appellant
_________________________________________________________________

                         Consolidated with
                              06-10099
UNITED STATES OF AMERICA,

                                               Plaintiff-Appellee
     v.

ANTONIO CRUZ-MARTINEZ,
                                              Defendant-Appellant
_________________________________________________________________
                         Consolidated with
                              06-10142
UNITED STATES OF AMERICA,

                                               Plaintiff-Appellee
     v.

LUIS ESTRADA,
                                              Defendant-Appellant
_________________________________________________________________
                         Consolidated with
                              06-10211
UNITED STATES OF AMERICA,

                                               Plaintiff-Appellee
     v.

TABRODRICK DESHAUN CRADDOCK,
                                              Defendant-Appellant


                      ----------------------
                         Appeals from the
                   United States District Court
                for the Northern District of Texas
                      ----------------------

                                 2
Before JONES, Chief Judge, WIENER, and BARKSDALE, Circuit Judges.

WIENER, Circuit Judge:

      This consolidated appeal involves six defendants, each of

whom challenges his sentence.            All of the sentences were imposed

by the same district judge.              Defendant-Appellants Omar Mejia-

Huerta, Anastacio Pantoja-Arellano, Jose Andres Dehuma-Suarez,

and   Antonio    Cruz-Martinez        were    convicted      of    illegal    re-entry

after deportation, in violation of 8 U.S.C. § 1326.                          Defendant-

Appellant Luis Estrada was convicted of transporting aliens, in

violation of 8 U.S.C. § 1324.                 Defendant-Appellant Tabrodrick

Deshaun Craddock was convicted of being a felon in possession of

a firearm, in violation of 18 U.S.C. § 922(g)(1).                         Of the six,

only one —— Estrada —— was sentenced before United States v.

Booker,1     but,   post-Booker,        his    case    was        remanded    for    re-

sentencing.         All    the   sentences      were   imposed          between     early

December 2005 and early February 2006.

      Although      nothing      in     the     government’s            pre-sentencing

submissions or the probation officers’ Pre-Sentence Investigation

Reports     (“PSR”)       recommended    or     mentioned         any    grounds     for

sentencing departures or variances, the district court in each

case —— without providing pre-sentencing notice of its intent to



      1
          543 U.S. 220 (2005).

                                         3
do   so ——       imposed    a   non-Guidelines    sentence      greater   than   the

Guidelines range indicated.              Finding Burns v. United States2 and

the plain language of Federal Rule of Criminal Procedure 32(h)

inapplicable        to     post-Booker    sentences   at     variance     with   the

Guidelines,3 we conclude that, post-Booker, a sentencing court

need       not   provide     pre-sentencing      notice    of    its   sua   sponte

intention to impose a non-Guidelines sentence and affirm the

district court in all respects.

                             I. FACTS AND PROCEEDINGS

A.     Omar Mejia-Huerta

       Mejia-Huerta was indicted for a single count of illegal re-

entry after deportation.4            He pleaded guilty pursuant to a plea

agreement.        Prior to sentencing, the probation officer prepared a

PSR, which calculated Mejia-Huerta’s advisory Guidelines range at

9 to 15 months imprisonment.


       2
           501 U.S. 129 (1991).
       3
            Rule 32(h) 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.

Fed. R. Crim. Proc. 32(h).
       4
           8 U.S.C. § 1326.

                                           4
       The       district        court     sentenced      Mejia-Huerta           to       a    non-

Guidelines sentence of 36 months imprisonment followed by three

years supervised released.                      Before imposing the sentence and

after       considering         the    sentencing    objectives            of   18    U.S.C.      §

3553(a), the district court stated that Mejia-Huerta’s extensive

criminal history, disrespect for the laws of the United States,

and    threat        to   public       safety   warranted       an    “upward        variance.”5

Prior to sentencing, neither the district court nor the PSR, or

any pre-sentencing submission by the government, indicated the

possibility          of   or    reasoning       behind    the    imposition          of    a   non-

Guidelines           sentence.          Mejia-Huerta       did       not    object        to    the

sentence, but timely filed a notice of appeal.

B.     Anastacio Pantoja-Arellano

       Pantoja-Arellano was indicted for a single count of illegal

re-entry after deportation.6                    He pleaded guilty pursuant to a

plea       agreement.          Prior     to   sentencing,       the    probation          officer

prepared         a   PSR,      which    calculated       Pantoja-Arellano’s               advisory

Guidelines range at 33 to 41 months imprisonment.


       5
       Mejia-Huerta had two prior convictions for driving while
intoxicated, two prior convictions for improper entry by an illegal
alien, a single conviction for interfering with public duties of
Emergency Medical Services officials, and arrests for making a
false claim of U.S. citizenship, possession and use of an inhalant,
driving while intoxicated, evading arrest, and tampering with a
government document.
       6
           Id.

                                                 5
      The   district        court   sentenced          Pantoja-Arellano      to    a   non-

Guidelines sentence of 96 months imprisonment followed by three

years supervised released.               Before imposing the sentence and

after considering the sentencing objectives of § 3553(a), the

district court stated that Pantoja-Arellano’s extensive criminal

history, disrespect for the laws of the United States, and threat

to   public   safety        warranted    an       “upward      variance.”7      Prior    to

sentencing, neither the district court nor the PSR, or any pre-

sentencing        submission        by   the           government,     indicated        the

possibility       of   or   reasoning    behind          the   imposition    of    a   non-

Guidelines sentence.

      At    the     conclusion      of   the       sentencing      hearing,       Pantoja-

Arellano’s counsel objected to the upward variance and asked the

district court if it preferred to consider the objection by oral

argument at present or subsequently in writing.                          The district

court     advised      Pantoja-Arellano           to    file   a   subsequent     written

objection.

      In the post-sentencing written objection, Pantoja-Arellano’s

counsel complained that the district court erred in failing to


      7
        Pantoja-Arellano had three prior convictions for driving
while intoxicated, two prior convictions for illegal re-entry, two
prior convictions for aiding and abetting transportation of illegal
aliens, two prior convictions for assaults causing bodily injury to
family members, a single prior drug offense conviction, and
additional convictions that were not specifically identified by the
district court at sentencing.

                                              6
give him notice of its intent to make a variance; that the

variance did not comply with § 4A1.3 of United States Sentencing

Guidelines (“U.S.S.G.”); and that the sentence was unreasonable.

The district court denied the motion and stated that, even if it

were to grant the motion and resentence Pantoja-Arellano, it

would impose the same sentence.                     Pantoja-Arellano timely filed a

notice of appeal.

C.    Jose Andres Dehuma-Suarez

      Dehuma-Suarez was indicted for a single count of illegal re-

entry after deportation, to which he pleaded guilty pursuant to a

plea agreement.8             Prior    to   sentencing,        the   probation     officer

prepared        a     PSR,   which     calculated         Dehuma-Suarez’s        advisory

Guidelines range at 21 to 27 months imprisonment.

      The       district      court    sentenced        Dehuma-Suarez       to    a   non-

Guidelines sentence of 120 months imprisonment followed by three

years supervised released.                 Before imposing the sentence and

after considering the sentencing objectives of § 3553(a), the

district court          stated   that      Dehuma-Suarez’s          extensive    criminal

history, disrespect for the laws of the United States, and threat

to   public         safety   warranted     an       “upward   variance.”9        Prior   to


      8
          Id.
      9
       Dehuma-Suarez had four prior convictions for driving while
intoxicated and a single conviction for assault on a peace officer,
and was arrested and charged with sexual assault of a 14-year-old

                                                7
sentencing, neither the district court nor the PSR, or any pre-

sentencing       submission         by     the     government,          indicated         the

possibility      of   or    reasoning      behind       the    imposition     of    a    non-

Guidelines sentence.

     Despite not voicing an objection at the sentencing hearing,

Dehuma-Suarez filed a post-sentencing objection to the upward

variance later        that      day,    making    the    same       claims   as    Pantoja-

Arellano.       In response, the district court denied the motion and

stated    the    same      observation      that    it        had    made    in    Pantoja-

Arellano’s      case:      it   would    impose    the    same       sentence,     even    if

Dehuma-Suarez’s         motion    was    meritorious.           Dehuma-Suarez          timely

filed a notice of appeal.

D.   Antonio Cruz-Martinez

     Cruz-Martinez was indicted for a single count of illegal re-

entry after deportation, and pleaded guilty pursuant to a plea

agreement.10      Prior to sentencing, the probation officer prepared

a PSR, which calculated Cruz-Martinez’s advisory Guidelines range

at 21 to 27 months imprisonment.

     The     district       court       sentenced       Cruz-Martinez        to    a    non-

Guidelines sentence of 60 months imprisonment followed by three



female child. In addition, Dehuma-Suarez had been deported twice
and subsequently re-entered the United States both times.
     10
          Id.

                                            8
years supervised released.              Before imposing the sentence, the

district court stated as it had in the other cases consolidated

with this one, that, after considering the sentencing objectives

of   §     3553(a),    Cruz-Martinez’s         extensive    criminal        history,

disrespect for the laws of the United States, and threat to

public     safety     warranted    an    “upward    variance.”11        Prior       to

sentencing, neither the district court nor the PSR, or any pre-

sentencing      submission        by    the     government,      indicated         the

possibility     of    or   reasoning    behind    the    imposition    of    a    non-

Guidelines sentence.

      At the conclusion of the sentencing hearing, Cruz-Martinez’s

counsel objected to the upward variance and asked the district

court if it preferred to consider the objection by oral argument

at   present   or     subsequently      in    writing.     The   district        court

advised Cruz-Martinez to file a subsequent written objection.

      In the post-sentencing written objection, Cruz-Martinez’s

counsel objected to the upward variance for the same reasons

espoused by Pantoja-Arellano and Dehuma-Suarez.                  Making the same

observations as it had in those cases, the district court denied



      11
       Cruz-Martinez had two prior convictions for driving while
intoxicated, a single prior conviction for assault causing bodily
injury, which was committed on his wife and children, and three
prior illegal re-entries into the United States.      During one
incident of driving while intoxicated, Cruz-Martinez had an
unrestrained 7-month-old child in the vehicle with him.

                                         9
the motion and stated that it would impose the same sentence,

even if Cruz-Martinez’s motion was meritorious.                Cruz-Martinez

timely filed a notice of appeal.

E.   Luis Estrada

     Estrada was indicted for a single count of transporting

illegal aliens.12    He pleaded guilty pursuant to a plea agreement

and was sentenced pre-Booker.       On appeal, we vacated his sentence

for Booker error and remanded.13

     Prior to resentencing, the probation officer prepared a PSR,

which calculated Estrada’s advisory Guidelines range at 33 to 41

months    imprisonment.      The   district    court    lowered    Estrada’s

Guidelines range after sustaining an objection to a two-point

enhancement.      As a result, Estrada’s Guidelines range was 27 to

33   months    imprisonment.       The     district    court   nevertheless

resentenced Estrada to a non-Guidelines sentence of 41 months

imprisonment followed by three years supervised release.             Before

imposing    the   sentence   and   after    considering    the    sentencing

objectives of § 3553(a), the district court stated that Estrada’s

disrespect for the laws of the United States and threat to public




     12
          Id. § 1324(a)(1)(A)(ii).
     13
          United States v. Estrada, 153 F.App’x 265, 266-67 (5th Cir.
2005).

                                     10
safety warranted an “upward variance.”14                Prior to sentencing,

neither the district court nor the PSR, or any pre-sentencing

submission by the government, indicated the possibility of or

reasoning behind the imposition of a non-Guidelines sentence.

Estrada did not object to the sentence, but did timely file a

notice of appeal.

F.   Tabrodrick Deshaun Craddock

     Craddock was indicted for a single count of being a felon in

possession of a firearm.15           He pleaded guilty pursuant to a plea

agreement.       Prior to sentencing, the probation officer prepared a

PSR, which calculated Craddock’s advisory Guidelines range at 21

to 27 months imprisonment.

     The district court sentenced Craddock to a non-Guidelines

sentence    of     60   months     imprisonment    followed    by    three    years

supervised released.             Before imposing the sentence and after

considering the sentencing objectives of § 3553(a), the district

court     stated    that     Craddock’s       history   of    violent      criminal

behavior,    his    threat    to    public    safety,   the   need    to    provide

adequate punishment, and the need to promote respect for the law



     14
       Estrada was transporting 17 illegal aliens in his vehicle
and his co-defendant was transporting 10 additional illegal aliens
in his vehicle.   The district court concluded that these facts
alone justified the upward variance.
     15
          18 U.S.C. § 922(g)(1).

                                         11
warranted an “upward variance.”16             Prior to sentencing, neither

the district court nor the PSR, or any pre-sentencing submission

by   the   government    indicated     the    possibility    of    or   reasoning

behind the imposition of a non-Guidelines sentence.                 Craddock did

not object to the sentence, but did timely file a notice of

appeal.

                              II. LAW AND ANALYSIS

      On    appeal,     all    six    defendants    assert        two   identical

arguments: (1) The district court erred when it failed to provide

pre-sentencing notice of its sua sponte intention to impose a

non-Guidelines sentence, thereby violating Burns and Rule 32(h);

and (2) the district court erred when it failed to follow the

sentencing    methodology       set   forth   in   U.S.S.G.   §     4A1.3.     In

addition,    Mejia-Huerta,       Pantoja-Arellano,      Dehuma-Suarez,        and

Cruz-Martinez contend that the district court erroneously treated

each of their prior aggravated felony convictions as sentence-


      16
        Craddock had prior convictions for assault in which he
assaulted his mother and two younger siblings (ages twelve and
thirteen, respectively), evading arrest, and unauthorized use of a
motor vehicle, in which he led law enforcement officers on a chase
throughout Lubbock, Texas and was only apprehended after crashing
the vehicle into a utility pole. Furthermore, during the occasion
of one of Craddock’s arrests, law enforcement officers entered the
residence where Craddock was located and observed Craddock
brandishing a pistol. Craddock charged the officers, engaging in
a fight with one of them. Craddock continued to fight with this
officer until subdued by a taser.     In addition, an analysis of
spent rounds from the pistol in Craddock’s possession indicated
that it had been used one week earlier in a home-invasion robbery.

                                       12
enhancing factors, rather than as substantive elements pursuant

to 8 U.S.C. § 1326(b).

       The government agrees with the defendants that the district

court was required by the rationale of Burns and Rule 32(h) to

provide pre-sentencing notice of its sua sponte intention to

impose a non-Guidelines sentence.                 The government contends that

this        notice   will     insure   a    more      focused     and    adversarial

proceeding, and will avoid any due process implications.

       Notwithstanding its position, the government asserts that

the district court’s failure to provide pre-sentencing notice of

its sua sponte intention to impose a non-Guidelines sentence does

not constitute reversible error.                As to Pantoja-Arellano, Dehuma-

Suarez, and Cruz-Martinez, the government asserts that our review

is for harmless error and, because the district court explicitly

acknowledged that, even if it had provided pre-sentencing notice

of its sua sponte intention to impose a non-Guidelines sentence,

it would have imposed the same sentence, any error was harmless.

As     to    Mejia-Huerta,      Estrada,        and   Craddock,    the    government

contends that review is for plain error and, because there is no

binding, pre-existing law on this issue, any error was not plain.

A.     Standard of Review

       Having        timely     objected,         Pantoja-Arellano’s,        Dehuma-




                                           13
Suarez’s,17 and Cruz-Martinez’s claims are reviewed for harmless

error.18     Under   harmless    error     review,   “[a]ny   error,    defect,

irregularity, or variance that does not affect substantial rights

must be disregarded.”19         An error affects substantial rights if

it affects the outcome of the trial proceedings; conversely, an

error is harmless if it does not affect the outcome of the

district     court   proceedings.20        A   sentencing     error    will   be

considered harmless if the government can establish beyond a

reasonable doubt that the district court would have imposed the

same sentence absent the error.21

     In contrast, we review the claims of Mejia-Huerta, Estrada,

and Craddock for plain error, as they failed timely to object to

the district court.22      Under plain error review, we may exercise

     17
        It is questionable whether Dehuma-Suarez timely raised an
objection to his sentence, thus implicating the standard of review
we apply to his claim.        Dehuma-Suarez failed to raise a
contemporaneous objection during his sentencing hearing, but filed
a written objection later that same day. His actions may not have
been sufficient to constitute a timely objection, but because his
claim fails under both harmless error and plain error review, we
need not reach this issue. Instead, we will review Dehuma-Suarez’s
claim under the more lenient harmless error standard.
     18
          United States v. Walters, 418 F.3d 461, 463 (5th Cir. 2005).
     19
          Fed. R. Crim. Proc. 52(a).
     20
          United States v. Akpan, 407 F.3d 360, 377 (5th Cir. 2005).
     21
          United States v. Pineiro, 410 F.3d 282, 286 (5th Cir. 2005).
     22
       United States v. Vargas-Garcia, 434 F.3d 345, 347 (5th Cir.
2005), cert. denied, 126 S. Ct. 1894 (2006). Estrada contends that

                                      14
our discretion to correct a defendant’s sentence if there is: (1)

an error; (2) that is plain; (3) that affects substantial rights;

and (4) that seriously affects the fairness, integrity, or public

reputation of judicial proceedings.23

B.   Merits

     i.     Rule 32(h) and Burns

     Rule 32(h) was a legislative response to the Supreme Court’s

decision in Burns.        There, the Supreme Court held that an earlier

version of Rule 32 required a sentencing court to give parties

reasonable notice of its intention to depart upwardly sua sponte

from the appropriate Guidelines range, if the grounds for such a

departure    were   not    identified    in   either   the   PSR   or   a   pre-

sentencing submission by the government.24             The Court concluded

that, to give effect to a defendant’s right “to comment upon the




his claim should be reviewed for harmless error as he properly
objected to the imposition of his sentence. We disagree. At the
conclusion of Estrada’s sentencing, Estrada’s counsel stated,
“[W]ith the Court’s permission, I’ll file a written objection on
the notice requirement.”    Nothing more was said concerning the
district court’s alleged error. In response, the district court
approved Estrada’s proposed procedure. Estrada, however, failed to
file his proposed written objection. Estrada’s counsel’s single
statement was simply insufficient to preserve Estrada’s objection.
It did not adequately provide the district court with the substance
of the objection or an opportunity to cure the perceived error.
Thus, Estrada’s claim is reviewed for plain error.
     23
          United States v. Lewis, 412 F.3d 614, 616 (5th Cir. 2005).
     24
          501 U.S. at 138-39.

                                        15
probation officer’s determination and on other matters relating

to the appropriate sentence,” advance notice was a prerequisite

to a departure.25           Otherwise, reasoned the Court, a litigant

would unfairly have (1) to engage in an incoherent comment and

defense at sentencing; (2) in a pre-sentencing filing, to waste

large amounts of time guessing when or on what grounds a court

might     depart     sua    sponte;   or    (3)   to   suggest     reluctantly   a

departure possibility to the sentencing court in a pre-sentencing

filing, only for the purpose of rebutting the possible departure

grounds.26     Rule 32(h) has essentially codified the holding of

Burns.

     Before        United   States    v.    Booker,    sentencing    courts   were

compelled to impose sentences that fell within the sentencing

ranges assigned by the Guidelines, unless a specified exception

existed.27    When a sentencing court found such an exception and

exercised     its     limited    discretion       to    sentence    outside   the

applicable Guidelines range, the court was said to be engaging in




     25
       Id. This right was codified in Rule 32(a)(1) at the time
of Burns, but is now codified in Rule 32(i)(1).
     26
        Id. at 136-37.   The Court also expressed concern with
whether a lack of notice under Rule 32 would violate the Due
Process Clause. Id. at 138.
     27
          543 U.S. at 259.

                                           16
a    “departure”    from    the       Guidelines.28           Thus,       pre-Booker,     a

sentencing     court     would     either    impose      a    sentence         within   the

properly     calculated     Guidelines        range     or    impose       a    Guidelines

sentence that included an upward or downward departure.

      Since Booker, sentencing courts have had a third sentencing

option —— a non-Guidelines sentence.29                       Under the post-Booker

advisory     Guidelines    regime,      a    sentencing        court      may    impose   a

sentence either higher or lower than —— at variance with —— the

appropriate Guidelines range.30                  Before doing so, however, the

sentencing court must calculate the correct Guidelines range,

consider it as advisory, and use it as a frame of reference.31

If   the    sentencing     court      chooses      to   impose       a    non-Guidelines

sentence, its reasons for doing so must be consistent with the

factors      enumerated    in     §    3553(a).32            Thus,       post-Booker,     a


      28
           United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006).
      29
        United States v. Mares, 402 F.3d 511, 519 n.7 (5th Cir.
2005), cert. denied, 126 S. Ct. 43 (2005).
      30
           Smith, 440 F.3d at 707.
      31
       United States v. Angeles-Mendoza, 407 F.3d 742, 746 (5th
Cir. 2005).
      32
       Smith, 440 F.3d at 707. Section 3553(a)’s factors include:
the   defendant’s   offense   conduct,    personal   history,   and
characteristics; the need for the sentence to reflect the
seriousness of the offense, to promote respect for the law, to
provide just punishment, to afford adequate deterrence to criminal
conduct, to protect the public, and to rehabilitate the defendant;
the kinds of sentences available; the advisory Guidelines range and

                                            17
sentencing court may impose a non-Guidelines sentence, i.e., a

“variance”, but not a “departure,” if it calculates the proper

sentencing range and references the broad array of factors set

forth in § 3553(a).

     Since     Booker,   an    incongruent         pattern     of   caselaw    has

developed    among    those   federal    circuits       that   have   considered

whether Burns or Rule 32(h) continue to apply to non-Guidelines

sentences.     The Third,33 Seventh,34 Eighth,35 and Elevnth36 Circuits

have answered in the negative; the Second,37 Fourth,38 Ninth,39 and

Tenth40    Circuits   have    answered       in   the   affirmative.      In    an



policy statements; the need to avoid unwarranted                      sentencing
disparities; and the need to provide restitution.
     33
       United States v. Vampire Nation, 451 F.3d 189, 195-98 (3d
Cir. 2006), cert. denied, 127 S. Ct. 424 (2006).
     34
       United States v. Walker, 447 F.3d 999, 1005-07 (7th Cir.
2006), cert. denied 127 S. Ct. 314 (2006).
     35
       United States v. Egenberger, 424 F.3d 803, 805-06 (8th Cir.
2005), cert. denied 126 S. Ct. 1106 (2006).
     36
          United States v. Irizarry, 458 F.3d 1208, 1212 (11th Cir.
2006).
     37
          United States v. Anati, 457 F.3d 233, 236-38 (2d Cir. 2006).
     38
          United States v. Davenport, 445 F.3d 366, 371 (4th Cir.
2006).
     39
       United States v. Evans-Martinez, 448 F.3d 1163, 1167 (9th
Cir. 2006).
     40
          United States v. Dozier, 444 F.3d 1215, 1217-18 (10th Cir.
2006).

                                        18
unpublished    and   thus    non-binding       opinion,     we    have   previously

determined that a sentencing court’s failure to provide notice of

its intention to impose a non-Guidelines sentence post-Booker

does not constitute plain error, but we have expressly declined

to rule on whether such failure constitutes error.41                        We now

enter the fray, agreeing with the circuits that have concluded

that    neither    Burns    nor   Rule    32(h)    apply     to    non-Guidelines

sentences and thereby disrupt the equipoise of the circuit split

on this issue.

       We first note that the plain language of Rule 32(h) limits

its application to departures.                It contains no language even

hinting that it might apply elsewhere.              We conclude that we are

bound to hold that Rule 32(h) applies to departures only and not

to variances from the Guidelines.

       In addition, as Booker has rendered the Guidelines purely

advisory, the concerns that precipitated the Court’s decision in

Burns are no longer viable.         Sentencing post-Booker is a heavily

discretionary exercise.       Sentencing courts need only consider the

Guidelines    as   informative     and    must    consult    the    full   host   of

factors set forth in § 3553(a) before rendering a reasonable non-


       41
       United States v. Dean, No. 05-51015, 2006 WL 3005546, at *2
(5th Cir. Oct. 23, 2006); cf. United States v. Mateo, 179 F.App’x
64, 65 (1st Cir. 2006); United States v. Pettus, 166 F. App’x 532,
534 (2d Cir. 2006); United States v. Simmerer, 156 F.App’x 124, 128
(11th Cir. 2005), cert. denied 126 S. Ct. 1599 (2006).

                                         19
Guidelines sentence.           These factors are known (or knowable) by

the parties prior to sentencing, thus putting the litigants on

notice that a sentencing court has discretion to consider any of

these factors.      This knowledge eliminates the element of unfair

surprise, the concern that defense counsel will waste time with a

pre-sentencing filing, the possibility that defense counsel will

unwittingly    provide       the    sentencing        court   with    a   grounds       for

departure, and the worry of possibly undermining the adversarial

process, that permeate Burns, thus negating its application to

non-Guidelines sentences.

     Here, each defendant had knowledge of the facts of his case

on which the district court would rely in applying the § 3553(a)

factors.     The district court correctly calculated the sentencing

ranges and, after considering the § 3553(a) factors, exercised

its discretion to impose non-Guidelines sentences.                          This is not

an instance when the sentencing court unexpectedly departed from

a   binding    Guidelines          range.        Rather,      the     district      court

predictably did what any district court is empowered to do post-

Booker.       If   we   were       to   conclude       that   the     advance      notice

requirement of Rule 32(h) applies to non-Guidelines sentences, we

would     re-elevate    the    Guidelines        to    a   position    it    no    longer

enjoys.42     Thus,     we    conclude      that      sentencing     courts       are   not


     42
          See Vampire Nation, 451 F.3d at 196.

                                            20
required       to    give    pre-sentencing       notice     of    their     sua   sponte

intention to impose a non-Guidelines sentence, regardless of the

pre-Booker pronouncements of Burns and Rule 32(h).

       ii.     U.S.S.G. § 4A1.3

       Pursuant to U.S.S.G. § 4A1.3(a)(1), a sentencing court may

impose an upward departure “[i]f reliable information indicates

that    the    defendant’s        criminal    history       category    substantially

under-represents            the   seriousness     of   the    defendant’s      criminal

history or the likelihood that the defendant will commit other

crimes.”        In the event that the sentencing court decides to

depart, it is to follow the method for calculating the extent of

the departure set forth in §§ 4A1.3(a)(4)(A) and (B).

       Here,        the   defendants    argue      that      their    sentences      were

unreasonable because the district court failed to comply with or

consult       the    methodology     established       in    §    4A1.3.43      As   each

sentence was a variance and not a departure, we disagree.

       We note initially that the district court’s decisions to

impose non-Guidelines sentences were not based exclusively on

unrepresentative criminal histories.                   Rather, they were based on

a   number     of     §   3553(a)    factors,     including       extensive    criminal


       43
        On appeal, the Defendant-Appellants did not assert that
their respective sentences were unreasonable in and of themselves,
but instead only challenged the reasonableness of the sentences
based on the district court’s failure to consult and comply with §
4A1.3.

                                             21
history, the     need    to   promote     respect    for     law,   deterrence     of

future criminal conduct, and the need to protect the public.                      We

reiterate for emphasis that § 4A1.3 applies only to departures ——

based on unrepresentative criminal history —— not to variances.

Thus, from the outset, the defendants’ argument fails.

     Furthermore, the defendants completely skirt our test for

determining the reasonableness of a non-Guidelines sentence.                      We

have established that a non-Guidelines sentence is unreasonable

when it (1) does not account for a factor                      that should have

received significant weight, (2) gives significant weight to an

irrelevant or improper factor, or (3) represents a clear error of

judgment    in   balancing       the    sentencing    factors.44          Here,   the

defendants do not argue that the district court short-changed a

particular factor, over-emphasized another, or erred in balancing

multiple factors.       Instead, the defendants disregard our caselaw

and rely on a single, inapposite Seventh Circuit case to argue

that the sentencer’s failure to conduct the calculus of § 4A1.3

renders a non-Guidelines sentence per se unreasonable.45

     In    simplest     terms,    the   district     court    in    the   six   cases

consolidated here on appeal (1) calculated the proper Guidelines



     44
          Smith, 440 F.3d at 708.
     45
          United States v. Castro-Juarez, 425 F.3d 430 (7th Cir.
2005).

                                         22
ranges, (2) considered multiple § 3553(a) factors, (3) explained

its   reasons     for     imposing      non-Guidelines         sentences,    and   (4)

imposed     non-Guidelines       sentences        that    we     conclude    are   not

unreasonable.     We hold that the district court committed no error

in    calculating       and      imposing        the     defendants’        sentences.

Therefore, defendants’ no-pre-sentencing-notice claim fails under

either of the applicable standards of review.

      iii. 8 U.S.C. § 1326(b)

      Finally,     four     of   the     six     defendants      contend    that   the

district court      inappropriately            treated   their    prior     aggravated

felony convictions as sentence enhancements, rather than as an

element of their offenses under 8 U.S.C. § 1326(b).                           As this

argument is foreclosed by Almendarez-Torres v. United States,46

it fails.

                                 III. CONCLUSION

      In the post-Booker world of advisory Guidelines, all parties

are on notice that, after considering the sentencing factors of §

3553(a), a sentencing court has the discretion to impose a non-

Guidelines       sentence.             Stated      differently,       parties      are

conclusively presumed to have pre-sentencing knowledge of these

factors.    Thus, no party is unfairly prejudiced by the imposition



      46
       523 U.S. 224, 235 (1998); see United States v. Alvarado-
Hernandez, 465 F.3d 188, 190 n.2 (5th Cir. 2006).

                                          23
of a non-Guidelines sentence based on a sentencing court’s sua

sponte consideration and application of § 3553(a).           Accordingly,

the unfair surprise and other concerns sought to be remedied by

Burns and Rule 32(h) is no longer a legitimate concern and no

longer     necessitates   that    a   sentencing    court   provide   pre-

sentencing notice of its intention to impose a non-Guidelines

sentence sua sponte.

     Based on the applicable law and our extensive review of the

parties’ briefs and the records of the cases consolidated in this

appeal, we hold that (1) the district court was not required to

provide pre-sentencing notice of its sua sponte intention to

impose   a   non-Guidelines      sentence;   (2)   the   district   court’s

failure to follow the methodology of U.S.S.G. § 4A1.3 did not

constitute error; and (3) the defendants’ § 1326(b) claims are

non-meritorious.    We therefore affirm the sentence imposed by the

district court in each of these six consolidated cases.

AFFIRMED




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