United States v. Poindexter , 158 F. App'x 503 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4523
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MICHAEL POINDEXTER,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Joseph Robert Goodwin,
District Judge. (CR-04-12)
Submitted: December 22, 2005 Decided: December 29, 2005
Before WIDENER, NIEMEYER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David Schles, Charleston, West Virginia, for Appellant. Charles T.
Miller, Acting United States Attorney, John J. Frail, 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Unpublished opinions are not binding precedent in this circuit.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:
Michael Poindexter pled guilty to making an enclosure
available for the distribution of cocaine base (crack) and cocaine,
21 U.S.C.A. § 856(a)(2) (West Supp. 2005), and was sentenced to a
term of thirty-seven months imprisonment. Poindexter appeals his
sentence. Relying on United States v. Booker, 543 U.S. 220 (2005),
he asserts that his sentence was imposed in violation of the Ex
Post Facto Clause and that the district court erred in finding by
a preponderance of the evidence that an enhancement for possession
of a weapon was applicable under U.S. Sentencing Guidelines Manual
§ 2D1.1(b)(1) (2004). He also contends that the 100:1 statutory
sentencing ratio for cocaine and crack offenses violates the Equal
Protection Clause and renders his sentence unreasonable. We
affirm.
We first find the Ex Post Facto claim to be without
merit. See United States v. Jamison, 416 F.3d 538 (7th Cir. 2005);
United States v. Lata, 415 F.3d 107 (1st Cir. 2005); United
States v. Scroggins, 411 F.3d 572 (5th Cir. 2005); United States v.
Duncan, 400 F.3d 1297, 1306-08 (11th Cir.), cert. denied, 126 S.
Ct. 432 (2005). Poindexter’s argument that, post-Booker, the
district court must make factual findings concerning the guideline
calculation beyond a reasonable doubt is also without merit. See
United States v. Dalton, 409 F.3d 1247, 1252 (10th Cir. 2005);
United States v. Mares, 402 F.3d 511, 519 (5th Cir.), cert. denied,
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126 S. Ct. 43 (2005); McReynolds v. United States, 397 F.3d 479,
481 (7th Cir.), cert. denied, 125 S. Ct. 2559 (2005). Finally, and
Poindexter concedes, we have rejected previous equal protection
challenges to the sentencing ratio for crack and cocaine offenses.
United States v. Fisher, 58 F.3d 96, 99 (4th Cir. 1995). The
sentence in this case was imposed within a correctly calculated
guideline range and was within the statutory range. We conclude
that the sentence was reasonable. United States v. Hughes, 401
F.3d 540, 546-47 (4th Cir. 2005) (sentence imposed after Booker
will be affirmed if it is within statutory range and is
reasonable).
We therefore affirm the sentence imposed by the district
court. 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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