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.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 2:04-CR-20049-1
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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this opinion should not be published and is not precedent except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.