United States v. Hackney

                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 05-4370



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


CLAYTON W. HACKNEY,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Joseph Robert Goodwin,
District Judge. (CR-04-135)


Submitted:   August 31, 2005            Decided:   September 14, 2005


Before WILLIAMS, GREGORY, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, Michael L. Desautels, Assistant Federal Public
Defender, Charleston, West Virginia, for Appellant. Kasey Warner,
United States Attorney, W. Chad Noel, Assistant United States
Attorney, Charleston, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

           Clayton   W.    Hackney    pled    guilty    to   manufacturing

methamphetamine, in violation of 21 U.S.C. § 841(a)(1) (2000);

possession of a firearm while an unlawful user of a controlled

substance, in violation of 18 U.S.C. §§ 922(g)(3), 924(a)(2)

(2000); and possession of an unregistered firearm, in violation of

26 U.S.C. §§ 5861(d), 5871 (2000).           His sentencing occurred on

March 21, 2005, after the Supreme Court’s decision in United States

v. Booker, 125 S. Ct. 738 (2005), ruling that its decision in

Blakely v. Washington, 542 U.S. 296 (2004), was applicable to the

federal sentencing guidelines.       The district court, in sentencing

Hackney, carefully and thoroughly applied the holding in Booker.

The court sentenced Hackney to sixty-three months of imprisonment,

followed by three years of supervised release.

           On appeal, Hackney raises one issue, which he did not

raise in the district court.          He argues 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 Booker (referring to the Court’s opinion expressed

through Justice Breyer, which makes the guidelines advisory rather

than   mandatory),   rather   than   under    the   mandatory    guidelines

applicable at the time of his offense.          Reviewing this claim for

plain error, we find none.        See United States v. Olano, 507 U.S.

725,   731-32   (1993)   (plain   error    standard);   United   States   v.


                                   - 2 -
Jamison, 416 F.3d 538 (7th Cir. 2005) (rejecting ex post facto

claim); 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. 2005)

(same), petition for cert. filed, __ U.S.L.W. __ (U.S. July 20,

2005) (No. 05-5467).

           Having found that Hackney failed to establish plain error

under the Olano standard, we affirm his sentence. We dispense with

oral   argument   because   the   facts   and   legal   contentions   are

adequately presented in the materials before the court and argument

would not aid the decisional process.

                                                                AFFIRMED




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