United States v. Fox

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

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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

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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

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