                                                        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.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                     USDC No. 4:03-CR-137-ALL
                       --------------------

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this opinion should not be published and is not precedent except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.
