United States v. Hampsten ( 2001 )


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  •                      UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    ____________________
    No. 00-10449
    Summary Calendar
    ____________________
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    TERRY HAMPSTEN,
    Defendant-Appellant.
    ____________________________________________________________
    Appeal from the United States District Court
    for the Northern District of Texas
    (4:99-CR-152-1-P)
    ____________________________________________________________
    February 26, 2001
    Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
    PER CURIAM:*
    Terry Hampsten challenges his sentence, following his guilty-
    plea conviction for being a felon in possession of a firearm, in
    violation of 18 U.S.C. § 922(g)(1).            Hampsten contends, for the
    first time on appeal:     the district court erred by relying on the
    unsupported assertions of the probation officer and the Government
    in   finding   the   offense    involved     eight   to   12   firearms   and   a
    destructive device; and the number of firearms attributed to him,
    and his alleged possession of an explosive device, were elements of
    *
    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    this opinion should not be published and is not precedent except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.
    the offense rather than sentencing factors and thus should have
    been included in the indictment and proved beyond a reasonable
    doubt.
    Of course, Hampsten did not raise these issues in district
    court, we review only for plain error.   See, e.g., United States v.
    Olano, 
    507 U.S. 725
    , 731 (1993).         In order to satisfy this
    standard, there must be an error that is plain, clear, or obvious,
    and that affects a substantial right of the defendant.    
    Id. at 734.
    If these factors are met, we, in our discretion, may correct the
    error if it seriously affects the fairness, integrity, or public
    reputation of the judicial proceeding.    
    Id. at 736.
    Although the Government bore the burden of persuasion in this
    matter, Hampsten submitted no evidence to the district court to
    rebut the factual findings of the presentence report (PSR).       See
    United States v. Angulo, 
    927 F.2d 202
    , 205 (5th Cir. 1991); United
    States v. Alfaro, 
    919 F.2d 962
    , 966 (5th Cir. 1990).     A sentencing
    court is not bound by the parties’ written stipulation of facts,
    but may, with the aid of the PSR, “determine the facts relevant to
    sentencing.”   See U.S.S.G. § 6B1.4(d), p.s.; United States v.
    Garcia, 
    902 F.2d 324
    , 326-27 (5th Cir. 1990).
    Concerning the second issue, a fact used in sentencing that
    does not increase a penalty beyond the statutory maximum need not
    be alleged in the indictment and proved to a jury           beyond a
    reasonable doubt.   United States v. Keith, 
    230 F.3d 784
    , 787 (5th
    2
    Cir. 2000), petition for cert. filed (U.S. 16 Jan. 2001) (No. 00-
    8077).
    Hampsten has not demonstrated error, plain or otherwise.
    AFFIRMED
    3