United States v. France

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4690
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMIE LEE FRANCE, a/k/a Jamie Francis,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. David A. Faber, Chief
District Judge. (CR-04-237)
Submitted: January 18, 2006 Decided: February 7, 2006
Before MOTZ, TRAXLER, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, George H. Lancaster, Jr., Assistant Federal
Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston,
West Virginia, for Appellant. Charles T. Miller, Acting United
States Attorney, John L. File, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Beckley, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Jamie Lee France pled guilty to possession of cocaine with
intent to distribute, in violation of 21 U.S.C. § 841(a) (2000).
He appeals his 188-month sentence, arguing that it violates his due
process rights, as informed by ex post facto principles. He also
asserts that the sentence imposed was not reasonable.* Finding no
merit to France’s claims, we affirm his sentence.
France first contends that his due process rights, as informed
by ex post facto principles, are violated by the imposition of a
sentence under the Supreme Court's remedial decision in United
States v. Booker, 125 S. Ct. 738 (2005) (referring to Justice
Breyer’s opinion that makes the guidelines advisory rather than
mandatory), rather than under the mandatory guidelines applicable
at the time of his offense. France argues that the remedial
portion of Booker, making the Guidelines advisory rather than
mandatory, retroactively increased his possible maximum penalty
from the top of the mandatory Guideline range to the maximum set
forth in the United States Code in violation of ex post facto
principles. He relies for this proposition on the assumption that
the mandatory Guideline range could not include judicially
determined enhancements under Blakely. France’s argument is
*
France also argues that 21 U.S.C. § 851 is unconstitutional
in that it increased his maximum sentence based on evidence of a
prior conviction not alleged in his indictment or proved to a jury.
He concedes that this argument is foreclosed by our recent opinion
in United States v. Cheek, 415 F.3d 349 (4th Cir. 2005).
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fatally flawed, however, since the limitation on judicial fact-
finding for purposes of the federal guidelines did not coexist with
the mandatory regime pre-Booker. We therefore find that this claim
is without merit. See also United States v. Dupas, 419 F.3d 916(9th Cir. 2005) (rejecting ex post facto claim); United States v.
Jamison, 416 F.3d 538 (7th Cir. 2005) (same); United States v.
Lata, 415 F.3d 107 (1st Cir. 2005) (same); United States v.
Scroggins, 411 F.3d 572, 576 (5th Cir. 2005) (same); United States
v. Duncan, 400 F.3d 1297 (11th Cir.) (same), cert. denied, 126 S.
Ct. 432 (2005).
France also challenges the reasonableness of his sentence. He
asserts that the 188-month sentence imposed is greater than
necessary to reflect the seriousness of the offense, promote
respect for the law, and provide just punishment. We have
carefully reviewed the record and France's contentions and find
that the 188-month sentence imposed by the district court, when the
applicable advisory guideline range was 188 to 235 months, is
reasonable. See United States v. Hughes, 401 F.3d 540, 546-47 (4th
Cir. 2005) (noting after Booker sentencing courts should determine
the sentencing range under the guidelines, consider the other
factors under § 3553(a), and impose a reasonable sentence within
the statutory maximum).
Accordingly, we affirm France's sentence. We dispense with
oral argument because the facts and legal contentions are
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adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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