UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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.
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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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