                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   June 3, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 03-31119
                         Summary Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

MITCHELL LEON FARKAS,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
              for the Middle District of Louisiana
                      USDC No. 01-CR-91-ALL
                       --------------------

Before REAVLEY, JOLLY, and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:*

     Mitchell Leon Farkas appeals from his conviction of

possession of a firearm by a convicted felon.   He contends that

the evidence was insufficient to support his conviction, in part

because the photographic array from which his photograph was

selected was impermissibly suggestive; that the district court

erred by rejecting his proposed instruction regarding

circumstantial evidence; and that the district court erred by

sentencing him as an armed career criminal, pursuant to 18 U.S.C.

§ 924(e)(1).

     *
       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this opinion should not be published and is not precedent except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. 03-31119
                                  -2-

     Farkas raised his challenge to the photographic array for

the first time in his motion for a new trial.   We review Farkas’s

contention under the plain-error standard.    See United States v.

Loney, 959 F.2d 1332, 1341 & n.22 (5th Cir. 1992).   Farkas has

shown no error, plain or otherwise–-the markings underneath the

photographs did not render the array impermissibly suggestive.

See Passman v. Blackburn, 652 F.2d 559, 569 (5th Cir. 1981).      In

addition to the photographic array, the testimony of the pawn

shop manager about Farkas’s firearm transaction provided

sufficient evidence to support a finding beyond a reasonable

doubt that Farkas was the individual who conducted the

transaction.   See United States v. Bell, 678 F.2d 547, 549 (5th

Cir. 1982) (en banc).

     Farkas requested an instruction that in cases depending on

circumstantial evidence, a defendant is entitled to an acquittal

if the evidence, when viewed in the light most favorable to the

Government, gave equal or nearly equal support to a theory of

guilt and a theory of innocence.    Farkas’s proposed instruction

could have suggested that a standard other than the reasonable-

doubt standard applied to circumstantial evidence, and that

circumstantial evidence should be viewed differently from direct

evidence.   The district court did not abuse its discretion by

rejecting the instruction.    See United States v. Dien Duc Huynh,

246 F.3d 734, 738 (5th Cir. 2001).
                           No. 03-31119
                                -3-

     The Government provided Farkas with adequate notice of its

intention to seek sentencing as an armed career criminal, when it

filed a post-verdict notice with documents attached that

reflected Farkas’s many state-court convictions.   See United

States v. O’Neal, 180 F.3d 115, 125-26 (4th Cir. 1999).    Finally,

United States v. Booker, 125 S. Ct. 738 (2005), does not apply to

findings of prior convictions used to sentence a defendant as an

armed career criminal.   See Shepard v. United States, 125 S. Ct.

1254, 1262 (2005).

     AFFIRMED.
