United States v. Berard

135 F. App'x 749

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT June 22, 2005

Charles R. Fulbruge III Clerk No. 04-30966 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MICHAEL N. BERARD, JR.,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Louisiana USDC No. 2:04-CR-20049-1 --------------------

Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Michael N. Berard, Jr., appeals the 57-month sentence

imposed by the district court following his guilty-plea

conviction for possession of a firearm by a convicted felon.

Berard argues, pursuant to United States v. Booker, 125 S. Ct.

738 (2005), that he is entitled to resentencing because the

district court erred in sentencing him under a mandatory

application of the Sentencing Guidelines.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-30966 -2-

Because Berard did not raise an argument regarding the

mandatory application of the Sentencing Guidelines in the

district court, it is reviewed only for plain error. See United

States v. Valenzuela-Quevedo, 407 F.3d 728, 732 (5th Cir. 2005);

see also United States v. Malveaux, __F.3d__, No. 03-41618, 2005

WL 1320362 at *1 n.9 (5th Cir. Apr. 11, 2005). “[Berard] has not

shown, with a probability sufficient to undermine confidence in

the outcome, that if the judge had sentenced him under an

advisory sentencing regime rather than a mandatory one, he would

have received a lesser sentence.” United States v. Infante, 404

F.3d 376, 395 (5th Cir. 2005). Because Berard has not satisfied

his burden of establishing plain error, he is not entitled to

relief. See id.

AFFIRMED.