UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4330
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANTONIO SCOTT THOMAS,
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-04-154)
Submitted: October 26, 2005 Decided: November 15, 2005
Before MICHAEL and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.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, Monica K. Schwartz, 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Unpublished opinions are not binding precedent in this circuit.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:
Antonio Scott Thomas pled guilty to possession of a
firearm by a prohibited person under 18 U.S.C. § 922(g)(9) (2000).
Thomas was sentenced following the Supreme Court’s opinion in
United States v. Booker, 125 S. Ct. 738 (2005). The district
court applied the holding of Booker and sentenced Thomas to thirty
months of imprisonment. On appeal, Thomas alleges that he was
sentenced in violation of Booker and the Federal Sentencing
Guidelines. For the reasons that follow, we affirm.
In Booker the Supreme Court held that the mandatory manner
in which the Federal Sentencing Guidelines required courts to impose
sentencing enhancements based on facts found by the court by a
preponderance of the evidence violated the Sixth Amendment. Id. at
746, 750 (Stevens, J., opinion of the Court). The Court remedied
the constitutional violation by severing two statutory provisions,
18 U.S.C.A. § 3553(b)(1) (West Supp. 2005) (requiring sentencing
courts to impose a sentence within the applicable guideline range),
and 18 U.S.C.A. § 3742(e) (West 2000 & Supp. 2005) (setting forth
appellate standards of review for guideline issues), thereby making
the Guidelines advisory. Booker, 125 S. Ct. at 756-67 (Breyer, J.,
opinion of the Court).
After Booker, courts must calculate the appropriate
Guideline range, consider the range in conjunction with other
relevant factors under the Guidelines and 18 U.S.C.A. § 3553(a)
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(West 2000 & Supp. 2005), and impose a sentence. If a court imposes
a sentence outside the Guideline range, the district court must
state its reasons for doing so. United States v. Hughes, 401 F.3d
540, 546 (4th Cir. 2005). This remedial scheme applies to any
sentence imposed under the mandatory Guidelines, regardless of
whether the sentence violates the Sixth Amendment. Id. at 547
(citing Booker, 125 S. Ct. at 769 (Breyer, J., opinion of the
Court)). The sentence must be “within the statutorily prescribed
range and . . . reasonable.” Id. at 546-47 (citations omitted).
The district court followed Booker and Hughes in
sentencing Thomas. The court sentenced Thomas within his properly
calculated Guideline sentencing range and considered the factors in
§ 3553(a) in deciding his sentence. We find under these
circumstances that Thomas’ sentence was reasonable. Hughes, 401
F.3d at 546-47.
Next, Thomas contends that his due process rights, as
informed by ex post facto principles, were 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. We find that this claim is
without merit. See United States v. Jamison, 416 F.3d 538, 539-40
(7th Cir. 2005) (rejecting ex post facto claim); United States v.
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Lata, 415 F.3d 107, 110-11 (1st Cir. 2005) (same); United States v.
Scroggins, 411 F.3d 572, 575-77 (5th Cir. 2005) (same); United
States v. Duncan, 400 F.3d 1297, 1306-08 (11th Cir. 2005) (same),
cert. denied, 2005 WL 2493971 (U.S. Oct. 11, 2005) (No. 05-5467).
Finally, Thomas objects to his four-level enhancement
under U.S. Sentencing Guidelines Manual § 2K2.1(b)(5) (2004), for
possessing the firearm in connection with another felony, as was
recommended in his presentence report. Following an evidentiary
hearing on the matter, the district court found the evidence was
sufficient to uphold the enhancement. We find no reversible error.
See United States v. Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989)
(stating review standards).
Accordingly, we affirm Thomas’ 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
*
To the extent Thomas contests his conviction, we also affirm.
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