          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                FILED
                                                                   May 1, 2009
                                 No. 08-30887
                               Summary Calendar               Charles R. Fulbruge III
                                                                      Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

ANTOINE ILON THOMPSON

                                            Defendant-Appellant


                 Appeal from the United States District Court
                    for the Eastern District of Louisiana
                           USDC No. 2:08-CR-30-1


Before WIENER, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
      Defendant-Appellant Antoine Ilon Thompson appeals the 79-month
sentence imposed by the district court following his guilty plea conviction for
being a felon in possession of a firearm. He contends that the district court erred
by increasing his offense level under U.S.S.G. § 2K2.1(b)(6) based on the factual
finding that he attempted to shoot law enforcement officers with the firearm.




      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                  No. 08-30887

      A district court’s application of the Sentencing Guidelines is reviewed
de novo, and its factual findings are reviewed for clear error. United States
v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). “In regard to guideline
enhancements, the district court may adopt facts contained in the [presentence
report (PSR)] without inquiry, so long as the facts have an adequate evidentiary
basis and the defendant does not present rebuttal evidence.” United States v.
Caldwell, 448 F.3d 287, 290 (5th Cir. 2006). This court “will uphold a district
court’s factual finding on clear error review so long as the enhancement is
plausible in light of the record as a whole.” Id.
      Thompson’s unsworn and self-serving denial of the allegations contained
in the PSR at the sentencing hearing is not competent rebuttal evidence. See
United States v. Solis, 299 F.3d 420, 455 (5th Cir. 2002). Because Thompson did
not meet his burden of rebutting the information in the PSR, the district court
properly considered it as evidence supporting the enhancement. See United
States v. Roush, 466 F.3d 380, 388 (5th Cir. 2006). Moreover, Thompson has not
shown that the district court’s finding that the enhancement was appropriate is
not “plausible in light of the record as a whole.” See United States v. Caldwell,
448 F.3d 287, 290 (5th Cir. 2006).
      Thompson also asserts that we should “go en banc” to reexamine our
position that a district court may rely solely on the PSR to support sentencing
enhancements. Although Thompson challenged the veracity of his PSR in the
district court, he did not make the argument there that he now raises here --
that reliance on the PSR itself was error. Review is thus for plain error. See
United States v. Jimenez, 256 F.3d 330, 340 (5th Cir. 2001). To show plain error,
the appellant must identify an error that is clear or obvious and that affects his
substantial rights. United States v. Baker, 538 F.3d 324, 332 (5th Cir. 2008),
cert. denied, 129 S. Ct. 962 (2009). If the appellant makes such a showing, we
have the discretion to correct the error, but only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings. Id.

                                        2
                                  No. 08-30887

      Contrary to Thompson’s unsupported assertion, nothing in the language
of F ED. R. C RIM. P. 32(i)(3)(A) prohibits a sentencing court from relying on
disputed portions of the PSR when the defendant fails to meet his burden of
rebutting the contested information. Further, we have specifically rejected the
suggestion that we follow the Eighth Circuit’s determination that a district court
may not rely solely on the PSR when the facts supporting an enhancement are
disputed. See United States v. Bates, No. 95-50111, 1995 WL 581888 at *8 (5th
Cir. Sept. 21, 1995)(unpublished); see also 5 TH C IR. R. 47.5.3 (unpublished
opinions issued prior to January 1, 1996, are precedential). Thompson has not
shown clear or obvious error. See Baker, 538 F.3d at 332.
      AFFIRMED.




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