                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-2363
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Western District of Missouri.
Douglas M. Gollhofer,                   *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: March 17, 2005
                                Filed: June 21, 2005
                                 ___________

Before RILEY, BOWMAN, and GRUENDER, Circuit Judges.
                           ___________

BOWMAN, Circuit Judge.

       Douglas Gollhofer pleaded guilty to one count of being a felon in possession
of firearms in violation of 18 U.S.C. § 922(g)(1) (2000). In sentencing Gollhofer, the
District Court1 found that Gollhofer possessed a firearm in connection with another
felony offense and enhanced Gollhofer's base offense level by four pursuant to
§ 2K2.1(b)(5) of the United States Sentencing Guidelines. Gollhofer appeals the
enhancement to his sentence, arguing that it violated his Sixth Amendment rights.
We affirm.

      1
       The Honorable Scott O. Wright, United States District Judge for the Western
District of Missouri.
       After Gollhofer was sentenced and while his case was pending on appeal, the
Supreme Court ruled that the Guidelines ran afoul of the Sixth Amendment to the
extent that they required a sentencing judge to impose a sentence based on facts found
by the judge but not admitted by the defendant or proved to a jury beyond a
reasonable doubt. United States v. Booker, 125 S. Ct. 738, 756 (2005). To remedy
this problem, the Court declared the Guidelines "effectively advisory." Id. at 757.
Now, "district courts, while not bound to apply the Guidelines, must consult those
Guidelines and take them into account when sentencing," together with the other
sentencing factors enumerated in 18 U.S.C. § 3553(a). Id. at 767.

        Gollhofer argues that his Sixth Amendment rights were violated because the
fact underlying the § 2K2.1(b)(5) enhancement to his sentence (that he possessed a
firearm in connection with another felony) was neither alleged in the indictment nor
found by a jury beyond a reasonable doubt. Because Gollhofer did not challenge the
constitutionality of the Guidelines before the District Court, we review for plain error.
See United States v. Pirani, 406 F.3d 543, 548 (8th Cir. 2005) (en banc). To obtain
relief, Gollhofer must show that the District Court committed error, that the error was
plain, and that the error affected Gollhofer's substantial rights. See United States v.
Olano, 507 U.S. 725, 732 (1993). Even if Gollhofer can show these three elements,
granting relief is within our discretion, and we will only act if failure to correct the
error would result in a miscarriage of justice or would seriously affect the fairness,
integrity, or public reputation of judicial proceedings. See id.

       We conclude that the District Court committed no Sixth Amendment error in
calculating Gollhofer's Guidelines sentencing range. Gollhofer's felon-in-possession
charge stems from an incident that occurred on January 26, 2003. The presentence
investigation report (PSR) states that on that evening, Gollhofer had a verbal dispute
with his neighbor, Jim Erskin. After the dispute, Gollhofer retrieved a rifle from his
home and began walking in the direction of Erskin's residence. As he approached
Erskin's residence, Gollhofer fired a shot into the air to scare Erskin. Gollhofer then

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returned home. Pursuant to this incident, Gollhofer was charged with unlawful use
of a weapon in Missouri state court because he exhibited the rifle in an angry or
threatening manner in the presence of other persons. The Missouri court convicted
Gollhofer of unlawful use of a weapon on September 26, 2003.

       Gollhofer did not object to any of the facts presented in the PSR. Federal Rule
of Criminal Procedure 32(i)(3)(A) provides that a sentencing court "may accept any
undisputed portion of the presentence report as a finding of fact." "Therefore, a fact
in the PSR not specifically objected to is admitted for purposes of Booker." United
States v. McCully, 407 F.3d 931, 933 (8th Cir. 2005). By not objecting to the PSR,
Gollhofer admitted that he committed another felony offense, namely the unlawful
use of a weapon, in connection with his possession of the firearm. The District Court
did not violate Gollhofer's Sixth Amendment rights when it enhanced Gollhofer's
sentence based on facts that Gollhofer admitted.

       The District Court did err, however, in applying the Guidelines as mandatory,
rather than advisory. See Pirani, 406 F.3d at 553 ("All sentences imposed by a
district court that mistakenly (though understandably) believed the Guidelines to be
mandatory contain Booker error."). But to obtain relief, Gollhofer must show that the
error affected his substantial rights in that there was a "reasonable probability that,
but for Booker error, [he] would have received a more favorable sentence under an
advisory guidelines regime." Id.

      Gollhofer has an extensive history of felony convictions, which resulted in 22
criminal history points and placed him in criminal history category VI. With the
§ 2K2.1(b)(5) enhancement to his sentence, which we have held proper, Gollhofer's
base offense level was 27, resulting in a Guidelines sentencing range of 168–210
months' imprisonment. The District Court sentenced Gollhofer to 120 months'
imprisonment, the statutory maximum. See 18 U.S.C. § 924(a)(2) (2000) (setting
maximum sentence); U.S. Sentencing Guidelines Manual § 5G1.1(a) (2003) ("Where

                                         -3-
the statutorily authorized maximum sentence is less than the minimum of the
applicable guideline range, the statutorily authorized maximum sentence shall be the
guideline sentence."). After carefully reviewing the record on appeal, we conclude
that Gollhofer cannot demonstrate a reasonable probability that his sentence would
have been more favorable had the District Court been operating under advisory
Guidelines.

      Gollhofer's sentence is affirmed.
                      ______________________________




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