                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                        May 27, 2005

                                                               Charles R. Fulbruge III
                                                                       Clerk
                               No. 04-40655
                             Summary Calendar



                       UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,

                                  versus

                             WILLIAM J. KRAR,

                                                     Defendant-Appellant.



            Appeal from the United States District Court
                  for the Eastern District of Texas
                        USDC No. 6:03-CR-36-1


Before JONES, BARKSDALE, and PRADO, Circuit Judges.

PER CURIAM:*

           William J. Krar appeals his guilty-plea sentence for

possession of a chemical weapon in violation of 18 U.S.C. §§ 229

and 229A(a)(1).     Krar argues that the enhancement of his sentence

pursuant to United States Sentencing Guidelines § 2M6.1(b)(3)

violates Supreme Court precedent, including Blakely v. Washington,

124 S. Ct. 2531 (2004), because the enhancement was an element of

the offense that should have been charged in the indictment.                In

Blakely, the Supreme Court held that the Sixth Amendment prohibits


     *
            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opinion should not be published and is not precedent except under the limited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.
state sentences greater than “the maximum sentence a judge may

impose solely on the basis of the facts reflected in the jury

verdict or admitted by the defendant.”                 Blakely, 124 S. Ct. at

2537.    In United States v. Booker, 125 S. Ct. 738, 749-50 (2005),

the Supreme Court held that the system of enhancements established

by the federal sentencing guidelines violates the Sixth Amendment

as construed in Blakely.

            This court’s review is for plain error because Krar’s

Blakely/Booker argument is raised for the first time on appeal.

See United States v. Mares, ___ F.3d ___, No. 03-21035, 2005 WL

503715 at **7-8 (5th Cir Mar. 4, 2005), petition for cert. filed,

No. 04-9517 (U.S. Mar. 31, 2005).                   The enhancement of Krar’s

sentence under U.S.S.G. § 2M6.1(b)(3) was plain error because the

facts underlying the enhancement were found by the sentencing judge

under a mandatory guidelines system.             See Mares, 2005 WL 503715 at

*9.     Krar has not demonstrated, however, that the plain error

affected his substantial rights.               See id.      The district court

sentenced   Krar    to    135   months       imprisonment,    the    top   of   the

applicable guideline range, while indicating concern about the

quantity and amount of bomb making material Krar possessed.

            Krar   also   argues   that       his    due   process   rights     were

violated because the indictment did not allege the enhancement

under the sentencing guidelines, and, thus, he had no notice of

that charge against him.           As Krar had actual notice that the

Government would seek the enhancement, there is no plain error.

                                         2
See United States v. Alvarez-Moreno, 874 F.2d 1402, 1411 (5th Cir.

1989).

          AFFIRMED.




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