United States v. Luck

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 21, 2006
Charles R. Fulbruge III
Clerk
No. 05-20444
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
STEVEN D. LUCK,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CR-115-ALL
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Before STEWART, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Steven D. Luck appeals his sentence for bank robbery in
violation of 18 U.S.C. § 2113(a). Luck’s offenses occurred prior
to the decision in United States v. Booker, 543 U.S. 220 (2005),
and he was sentenced after Booker was decided. Luck argues that,
although he is entitled to retroactive application of Booker’s
Sixth Amendment holding, the remedial portion of Booker’s
holding, which made the Sentencing Guidelines advisory, may not
be applied in his case without violating the Due Process and
Ex Post Facto Clauses of the Constitution. He thus argues that
*
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this opinion should not be published and is not precedent except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. 05-20444
-2-
the district court should have applied the Guidelines as
mandatory in his case but should not have enhanced his sentence
based on facts that were not charged in the superceding
information and were neither admitted by him nor found by a jury
beyond a reasonable doubt. As Luck concedes, this argument is
foreclosed. See United States v. Austin, 432 F.3d 598, 599-600
(5th Cir. 2005); United States v. Scroggins, 411 F.3d 572, 575-76
(5th Cir. 2005). He has raised the issue to preserve it for
further review. Accordingly, the district court’s judgment is
AFFIRMED.