United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 13, 2006
Charles R. Fulbruge III
Clerk
No. 05-40384
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WALTER MARCELINO DE HOYOS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-1702-ALL
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Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Walter Marcelino De Hoyos appeals his 28-month sentence
following a guilty plea to possession with intent to distribute
less than 50 kilograms of marijuana. De Hoyos argues that his
sentence under advisory Sentencing Guidelines pursuant to United
States v. Booker, 543 U.S. 220 (2005), violates principles of due
process and the Ex Post Facto Clause; that the district court
plainly erred by failing to give him adequate notice that it was
considering an upward departure at sentencing; that his sentence,
a four-month upward deviation from the Sentencing Guidelines, is
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 05-40384
-2-
unreasonable because the district court considered an
impermissible sentencing factor, i.e., unadjudicated arrests; and
that the district court erred by ordering him to cooperate in the
collection of a DNA sample as a condition of his supervised
release.
As De Hoyos did not object to the application of advisory
Sentencing Guidelines in the district court, we review for plain
error. United States v. Olano, 507 U.S. 725, 734 (1993). The
retroactive application of the remedial opinion in Booker to
determine a post-Booker sentence does not violate ex post facto
and due process principles. United States v. Austin, 432 F.3d
598, 599 (5th Cir. 2005). Thus, no error occurred, plain or
otherwise. Id.; Olano, 507 U.S. at 732. De Hoyos has likewise
failed to show that the district court plainly erred by failing
to provide adequate notice that it was considering an upward
departure. United States v. Jones, 444 F.3d 430, 443 (5th Cir.
2006).
The sentence imposed by the district court is a minimal
increase from the properly calculated applicable Guideline range.
In light of the court’s stated focus on rehabilitation and
deterrence, we conclude that his sentence was reasonable. United
States v. Smith, 440 F.3d 704, 710 (5th Cir. 2006).
De Hoyos’s claim regarding DNA collection is not ripe for
review on direct appeal. See United States v. Riascos-Cuenu, 428
F.3d 1100, 1101-02 (5th Cir. 2005), petition for cert. filed
No. 05-40384
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(Jan. 9, 2006) (No. 05-8662). Accordingly, we dismiss this claim
for lack of jurisdiction. Id. at 1102.
AFFIRMED IN PART; DISMISSED IN PART FOR LACK OF
JURISDICTION.