UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4361
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
STEVEN ASHLEY FOX,
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-04-182)
Submitted: October 31, 2005 Decided: January 4, 2006
Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
S. Benjamin Bryant, Charleston, West Virginia, for Appellant.
Charles T. Miller, Acting United States Attorney, John L. File,
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Unpublished opinions are not binding precedent in this circuit.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:
Steven Ashley Fox pled guilty to one count of possession
with intent to distribute marijuana in violation of 21 U.S.C.
§ 841(a)(1) (2000). Fox was sentenced to forty-one months’
imprisonment. We affirm the sentence.
On appeal, Fox argues that the retroactive application of
the remedial holding in United States v. Booker, 125 S. Ct. 738
(2005), violates due process. He asserts that “[d]ue process, as
informed by ex post facto principles, prevents a court from
retroactively exposing a defendant to greater punishment as the
result of a subsequent unexpected and indefensible change to the
law.” Fox concludes that, since the sentencing guidelines were
mandatory at the time he committed the offense at issue, and the
Supreme Court’s holdings in Booker and Blakely v. Washington, 542
U.S. 296 (2004), “limit[] a defendant’s maximum sentence to that
supported by facts found by a jury beyond a reasonable doubt or
pled to by the defendant[,]” his sentence, based on judicially
found facts, violates his right to due process.
We have thoroughly reviewed Fox’s claim and find it to be
without merit based on the reasoning of our sister circuits. See
United States v. Dupas, 419 F.3d 916 (9th Cir. 2005) (rejecting ex
post facto claim); United States v. Jamison, 416 F.3d 538, 539-40
(7th Cir. 2005) (same); United States v. Lata, 415 F.3d 107, 110-12
(1st Cir. 2005) (same); United States v. Scroggins, 411 F.3d 572,
- 2 -
576 (5th Cir. 2005) (same); United States v. Duncan, 400 F.3d 1297,
1306-08 (11th Cir. 2005) (same), cert. denied, __ S. Ct. __, 2005
WL 2493971 (U.S. Oct. 11, 2005) (No. 05-5467).
Fox also argues that his forty-one month sentence “is
unreasonable because it is greater than necessary to comply with
the purpose of sentencing announced by Congress.” He asserts the
advisory guideline range “overstate[s] the seriousness of the
offense because the [guideline] enhancement for possession of
uncharged marijuana and cocaine unduly increased [his] sentence.”
After the Supreme Court’s decision in Booker, a
sentencing court is no longer bound by the range prescribed by the
sentencing guidelines. See United States v. Hughes, 401 F.3d 540,
546 (4th Cir. 2005). However, in determining a sentence
post-Booker, sentencing courts are still required to calculate and
consider the guideline range prescribed thereby as well as the
factors set forth in 18 U.S.C. § 3553(a) (2000). Id. As stated in
Hughes, we will affirm a post-Booker sentence if it is both
reasonable and within the statutorily prescribed range. Id. at
546-47.
Fox’s forty-one month sentence was not only at the lowest
end of the guideline range, but also below the statutory maximum of
five years. See 21 U.S.C. § 841(b)(1)(D). Furthermore, the
sentence imposed by the district court was reasonable as it
appropriately treated the guidelines as advisory, calculated and
- 3 -
considered the guideline range, and weighed the relevant § 3553(a)
factors.
Accordingly, we affirm Fox’s 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
- 4 -