United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 20, 2005
Charles R. Fulbruge III
Clerk
No. 04-30542
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
ALLAN ROSS WILHELM
Defendant - Appellant
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 2:03-CR-20104-ALL
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Before KING, Chief Judge, and DAVIS and STEWART, Circuit Judges.
PER CURIAM:*
Allan Ross Wilhelm appeals the sentence imposed by the
district court when he pleaded guilty to being a felon in
possession of a firearm. See 18 U.S.C. § 922(g). Wilhelm has
not shown clear error in the district court’s factual finding
that he stole the firearm at issue. See United States v.
Angeles-Mendoza, F.3d , No. 04-50118, 2005 WL 950130 (5th
Cir. Apr. 26, 2005). Thus, the district court did not err in
*
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this opinion should not be published and is not precedent except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. 04-30542
-2-
assessing a two-level increase in Wilhelm’s offense level. See
United States v. Luna, 165 F.3d 316, 324-25 (5th Cir. 1999).
Wilhelm argues that his sentence violates Blakely v.
Washington, 124 S. Ct. 2531 (2004), because it was increased on
the basis that the handgun was stolen, a finding that was not
made by a jury. After completion of briefing in this case, the
Supreme Court decided United States v. Booker, 125 S. Ct. 738,
756 (2005), which applied the Sixth Amendment holding in Blakely
to the federal sentencing guidelines and made the guidelines
advisory instead of mandatory.
Because Wilhelm did not raise his Blakely claim in the
district court, it is reviewed only for plain error. See United
States v. Mares, 402 F.3d 511, 513 (5th Cir. 2005), petition for
cert. filed (U.S. Mar. 31, 2005) (No. 04-9517). “[Wilhelm] 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,
F.3d , No. 02-50665, 2005 WL 639619 at *13 (5th Cir. Mar. 21,
2005). Wilhelm has not satisfied his burden of establishing
plain error. Thus, he is not entitled to resentencing on this
ground. See id.
AFFIRMED.