UNITED STATES of America, Appellee, v. Jose Trinidad HERNANDEZ-OLEA, Appellant, 132 F. App'x 73

PER CURIAM. Jose Hernandez-Olea appeals the sentence imposed by the district court 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, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).

To show plain error, HernandezOlea must “show a ‘reasonable 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, 406 F.3d 543, 552 (8th Cir.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 553 (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. . The Honorable Richard G.

Kopf, Chief Judge, United States District Court for the District of Nebraska.