                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  April 17, 2007

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 05-50225
                        Conference Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

DONALD DARNELL BURKS, also known as Donald Burks,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                      USDC No. 6:04-CR-35-2
                       --------------------

Before HIGGINBOTHAM, BENAVIDES, and PRADO, Circuit Judges.

PER CURIAM:*

     Donald Darnell Burks appeals from his 96-month prison

sentence for possession of an unregistered firearm.     For the

first time on appeal, Burks contends that the district court

should have decreased his offense level by two levels under

U.S.S.G. § 3B1.2(b) based on his minor role in the offense.

     The district court’s determination that a defendant did not

play a minor or minimal role in the offense is a finding of fact.

United States v. Villanueva, 408 F.3d 193, 203 (5th Cir.),

cert. denied, 126 S. Ct. 268 (2005).   Because the claim was not

     *
       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this opinion should not be published and is not precedent except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. 05-50225
                                -2-

raised below, it is reviewable for plain error only.     United

States v. Calverley, 37 F.3d 160, 162 (5th Cir. 1994) (en banc).

     Although Burks’s codefendant, Elzie Roberts, may have had a

more active role than Burks in using the firearm to commit

robbery, the evidence did not establish that Burks was so

uninvolved as to be “‘peripheral to the advancement of the

illicit activity.’”   See Villanueva, 408 F.3d at 204 (quoting

United States v. Miranda, 248 F.3d 434, 446-47 (5th Cir. 2001)).

Burks has thus not shown plain error.     See Calverley, 37 F.3d at

163; see also United States v. Lopez, 923 F.2d 47, 50 (5th Cir.

1991) (fact questions that can be resolved upon objection at

sentencing cannot constitute plain error).

     The sentence is AFFIRMED.
