                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 04-2423
                                    ___________

United States of America,                *
                                         *
             Appellee,                   * Appeal from the United States
                                         * District Court for the
      v.                                 * District of Nebraska.
                                         *
Jose Trinidad Hernandez-Olea,            * [UNPUBLISHED]
                                         *
             Appellant.                  *
                                    ___________

                             Submitted: May 12, 2005
                                 Filed: May 18, 2005
                                  ___________

Before WOLLMAN, BYE, and COLLOTON, Circuit Judges.
                           ___________

PER CURIAM.

      Jose Hernandez-Olea appeals the sentence imposed by the district court1
claiming error stemming from an increase in his sentence due to judicial factfinding
regarding the amount of methamphetamine attributable to Hernandez-Olea and
possession of a firearm. Hernandez-Olea did not object to judicial factfinding at trial
and his claim is therefore reviewed only for “plain error.” United States v. Olano,
507 U.S. 725 (1993). To show plain error, Hernandez-Olea must “show a ‘reasonable


      1
       The Honorable Richard G. Kopf, Chief Judge, United States District Court for
the District of Nebraska.
probability,’ based on the appellate record as a whole, that but for the error he would
have received a more favorable sentence.” United States v. Pirani, No 03-2871, slip
op. at 11 (8th Cir. Apr. 29, 2005) (en banc). The record before the court shows that
Hernandez-Olea has not met his burden. There is nothing to suggest that the district
court would impose a lesser sentence on remand, and “‘where the effect of the error
on the result in the district court is uncertain or indeterminate -- where we would have
to speculate -- the appellant has not met his burden of showing a reasonable
probability that the result would have been different but for the error.’” Id. at 13
(quoting United States v. Rodriguez, 398 F.3d 1291, 1301 (11th Cir. 2005)). Thus,
Hernandez-Olea has failed to meet his burden under plain error review.

      We therefore affirm the district court.
                      ______________________________




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