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. 04-30394
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OWEN HUGH ROBERTSON,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:03-CR-50067-ALL
--------------------
Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Owen Hugh Robertson appeals the sentence imposed following
his guilty-plea conviction for possession of a firearm by a
convicted felon. For the first time on appeal, Robertson asserts
that the application of an enhancement to his sentence for his
possession or use of a firearm in connection with the second-
degree murder of his wife was unconstitutional under Blakely v.
Washington, 124 S. Ct. 2531 (2004). Neither party has addressed
the effect of the Supreme Court’s recent decision in United
States v. Booker, 125 S. Ct. 738 (2005), which held that Blakely
*
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this opinion should not be published and is not precedent except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. 04-30394
-2-
was applicable to the federal sentencing guidelines. However,
because Robertson did raise the Sixth Amendment issue in his
opening brief, we will consider whether his sentence must be
vacated under Booker.
Because Robertson did not raise this issue below, we review
for plain error only. See United States v. Mares, 402 F.3d 511,
520 (5th Cir. 2005), petition for cert. filed (Mar. 31, 2005)
(No. 04-9517). Robertson has not demonstrated that the district
court would have imposed a different or a lesser sentence if it
had been guided by the Booker holding. Therefore, Robertson has
not shown that his sentence is plainly erroneous. See id. at
522.
AFFIRMED.