UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ____________________

No. 00-10449 Summary Calendar ____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TERRY HAMPSTEN,

Defendant-Appellant. ____________________________________________________________

Appeal from the United States District Court for the Northern District of Texas (4:99-CR-152-1-P) ____________________________________________________________ February 26, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Terry Hampsten challenges his sentence, following his guilty-

plea conviction for being a felon in possession of a firearm, in

violation of

(g)(1). Hampsten contends, for the

first time on appeal: the district court erred by relying on the

unsupported assertions of the probation officer and the Government

in finding the offense involved eight to 12 firearms and a

destructive device; and the number of firearms attributed to him,

and his alleged possession of an explosive device, were elements of

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. the offense rather than sentencing factors and thus should have

been included in the indictment and proved beyond a reasonable

doubt.

Of course, Hampsten did not raise these issues in district

court, we review only for plain error. See, e.g., United States v.

Olano,

(1993). In order to satisfy this

standard, there must be an error that is plain, clear, or obvious,

and that affects a substantial right of the defendant.

.

If these factors are met, we, in our discretion, may correct the

error if it seriously affects the fairness, integrity, or public

reputation of the judicial proceeding.

.

Although the Government bore the burden of persuasion in this

matter, Hampsten submitted no evidence to the district court to

rebut the factual findings of the presentence report (PSR). See

United States v. Angulo,

(5th Cir. 1991); United

States v. Alfaro,

(5th Cir. 1990). A sentencing

court is not bound by the parties’ written stipulation of facts,

but may, with the aid of the PSR, “determine the facts relevant to

sentencing.” See U.S.S.G. § 6B1.4(d), p.s.; United States v.

Garcia,

(5th Cir. 1990).

Concerning the second issue, a fact used in sentencing that

does not increase a penalty beyond the statutory maximum need not

be alleged in the indictment and proved to a jury beyond a

reasonable doubt. United States v. Keith,

(5th

2 Cir. 2000), petition for cert. filed (U.S. 16 Jan. 2001) (No. 00-

8077).

Hampsten has not demonstrated error, plain or otherwise.

AFFIRMED

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