UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4129
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DAVID LYNCH,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins. Robert E. Maxwell, Senior
District Judge. (2:01-cr-00012-REM)
Submitted: July 17, 2006 Decided: July 31, 2006
Before WILKINSON, WILLIAMS, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James R. Fox, WARNER LAW OFFICES, PLLC, Charleston, West Virginia,
for Appellant. Rita R. Valdrini, Acting United States Attorney,
Stephen D. Warner, Assistant United States Attorney, Elkins, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
David Lynch appeals his sentence imposed after this court
vacated his sentence and remanded to the district court for
resentencing in light of United States v. Booker, 543 U.S. 220
(2005), and United States v. Hughes, 401 F.3d 540, 547 (4th Cir.
2005). At resentencing, the district court rejected Lynch’s
request for a jury trial on those facts that increased his offense
level. The district court considered Booker, Hughes and the 18
U.S.C. § 3553(a) (2000) factors and sentenced Lynch to the same
sentence imposed under the mandatory guidelines scheme. On appeal,
Lynch contends: (1) he should have been given a jury trial to
determine the factual issues; (2) the court’s factual findings were
clearly erroneous; and (3) the Supreme Court’s decision to hold
that the Sentencing Guidelines are now advisory is
unconstitutional. We affirm.
At the original sentencing, the district court held a
hearing and listened to witness testimony prior to determining the
facts that increased Lynch’s offense level. On appeal, we found
there was no error. After the subsequent remand, there was no
authority for the court to convene a jury trial in order to
determine the factual findings. See Hughes, 401 F.3d at 560.
Because we found no error with respect to the district
court’s factual findings, we will not revisit the issue in this
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appeal as it is the law of the case. United States v. Aramony, 166
F.3d 655, 661 (4th Cir. 1999).
Finally, Lynch’s argument that it is unconstitutional for
the guidelines to be advisory is without merit.
Accordingly, we affirm the district court’s amended
judgment. 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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