UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4352
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MARK IVAN MCCLELLAND,
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-04-130)
Submitted: December 30, 2005 Decided: January 24, 2006
Before LUTTIG, WILLIAMS, and DUNCAN, 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Affirmed by unpublished per curiam opinion.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, John L. File, Assistant United States
Attorney, Beckley, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Mark Ivan McClelland appeals the 57-month sentence
imposed following his guilty plea to possession with intent to
distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) (2000).
He raises two issues on appeal, contending that: (1) the
retroactive application of the remedial holding of United States v.
Booker, 543 U.S. 220 (2005), violates ex post facto and due process
principles; and (2) his sentence, imposed by the district court
after considering the sentencing guidelines as advisory, is
unreasonable. Finding no merit to McClelland’s claims, we affirm.
In McClelland’s first claim, he argues that his due
process rights, in conjunction with 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. We have
thoroughly reviewed McClelland’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, 919-21 (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,
576 (5th Cir. 2005) (same); United States v. Duncan, 400 F.3d 1297,
1306-08 (11th Cir.) (same), cert. denied, 126 S. Ct. (2005).
- 2 -
Turning to McClelland’s second claim, we note that
McClelland’s sentencing occurred on March 16, 2005, after the
Supreme Court’s decision in Booker. The court sentenced McClelland
only after considering and examining the sentencing guidelines and
the factors set forth in 18 U.S.C.A. § 3553(a) (West 2000 & Supp.
2005), as instructed by Booker. The court sentenced McClelland at
the bottom of the applicable guideline range and well within the
twenty-year statutory maximum. We cannot conclude under these
circumstances that McClelland’s 57-month sentence is unreasonable.
Accordingly, we affirm McClelland’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
- 3 -