United States v. Bittick

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 28, 2006
Charles R. Fulbruge III
Clerk
No. 05-41363
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL SHAIN BITTICK,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:03-CR-137-ALL
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Before DAVIS, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
Michael Shain Bittick pleaded guilty to receipt of child
pornography and was sentenced to 121 months of imprisonment and
three years of supervised release after a remand by this court
for resentencing pursuant to United States v. Booker, 543 U.S.
220 (2005). Bittick argues that the district court violated his
rights by enhancing his base offense level based on conduct not
charged in the indictment, not admitted by him, and not proven by
the Government at sentencing, resulting in the sentence being
unreasonable. Bittick suffered no Booker violation. See United
*
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this opinion should not be published and is not precedent except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. 05-41363
-2-
States v. Johnson, 445 F.3d 793, 797 (5th Cir.), cert. denied,
126 S. Ct. 2884 (2006). In Booker, the Supreme Court determined
that the mandatory application of the Sentencing Guidelines
violated the Sixth Amendment’s requirement of a jury trial. Id.Bittick was re-sentenced under the advisory sentencing regime
after Booker was decided. See Johnson, 445 F.3d at 797.
Following Booker, in determining the guideline range of
imprisonment, a district court determines all facts relevant to
sentencing in the same manner as before Booker. Id. at 798. The
district court did not err in considering facts not charged in
the indictment, not admitted by Bittick, and not found by a jury
beyond a reasonable doubt. See id.Bittick contends that the district court had little or no
evidence to substantiate the sentencing enhancements. The
Presentence Report (PSR) set forth the facts upon which the
probation officer and the district court applied the
enhancements. The district court may rely on the facts in the
PSR post-Booker. See United States v. Alonzo, 435 F.3d 551, 553
(5th Cir. 2006). The facts have an adequate evidentiary basis
and Bittick does not present rebuttal evidence. See United
States v. Caldwell, 448 F.3d 287, 290 (5th Cir. 2006). Bittick
does not otherwise argue that his sentence is unreasonable. See
United States v. Smith, 440 F.3d 704, 706 (5th Cir. 2006). His
sentence is AFFIRMED.