United States v. Thomas , 187 F. App'x 285 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4752
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BRIAN BURTON THOMAS,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Joseph Robert Goodwin,
District Judge. (CR-05-15)
Submitted: June 1, 2006 Decided: June 28, 2006
Before WILLIAMS, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, George H. Lancaster, Jr., Assistant Federal
Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston,
West Virginia, for Appellant. Charles T. Miller, Acting United
States Attorney, W. Chad Noel, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Brian Burton Thomas pled guilty to manufacturing
methamphetamine, in violation of 21 U.S.C. § 841(a)(1), and using
or carrying a firearm during a drug trafficking crime, in violation
of 18 U.S.C. § 924(c)(1)(A). The district court imposed a sentence
of 108 months for the methampethamine charge and a consecutive
sentence of 60 months for the firearm charge. On appeal, Thomas
contends that his sentence with respect to the methamphetamine
charge is unconstitutional under the Ex Post Facto Clause and Due
Process Clause. Alternatively, he asserts that the sentence is
unreasonable. For the reasons set forth below, we affirm the
sentence.
I.
On January 18, 2005, a federal grand jury returned a two-count
indictment charging Thomas with manufacturing an unspecified
quantity of methamphetamine, and using or carrying a firearm during
and in relation to a drug trafficking crime. On February 5, 2005,
Thomas entered into a plea agreement for both counts. The district
court accepted the plea on February 28, 2005.
The presentence investigation report (“PSR”) calculated the
applicable Guidelines range only for the methamphetamine charge
because the Guidelines sentence for the firearms charge was the
minimum term of imprisonment required by 18 U.S.C. § 924(c)(1)
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(five years). Thus, with respect to the methamphetamine charge,
the PSR applied a base offense level of 34 under U.S.S.G. §
2D1.1(a)(3) & (c)(3), taking into account certain statements Thomas
made during his arrest indicating that he had manufactured 1.8144
kilograms of methamphetamine. The PSR also recommended a 2-level
enhancement for reckless endangerment under U.S.S.G. § 3C1.2, and
a 4-level reduction for acceptance of responsibility. With a total
offense level of 33 and a criminal history category of I, the
Guidelines range for the methamphetamine charge was 135 to 168
months.
At the sentencing hearing, Thomas objected to the PSR’s
finding of 1.8144 kilograms of methamphetamine, and further
asserted that the Ex Post Facto and Due Process Clause prohibited
the district court from imposing a sentence greater than the
sentence that could have been imposed under the formerly mandatory
Guidelines scheme. The district court upheld Thomas’s objection to
the relevant drug quantity, found that he was responsible for 570.6
grams of methamphetamine, and reduced his total offense level to
thirty-one. The district court therefore determined that the
Guidelines range for the methamphetamine charge was 108 to 135
months, and the Guidelines sentence for the firearms charge was
five years.
The district court ultimately imposed a sentence of 108 months
with respect to the methamphetamine charge, and a consecutive
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sentence of 60 months for the firearms charge. Thomas now appeals
his sentence for the methamphetamine charge.
II.
Thomas first contends that his 108-month sentence with respect
to the methamphetamine charge violated the Ex Post Facto Clause and
the Due Process Clause. Specifically, Thomas asserts that Justice
Breyer’s remedial opinion in United States v. Booker, 543 U.S. 220,
244-271 (2005), which rendered the Guidelines advisory,
unconstitutionally exposed him to a greater sentence under the now
advisory Guidelines scheme than the maximum sentence he would have
received under the formerly mandatory Guidelines regime. For
reasons previously articulated by this and other circuits, the
claim is without merit. See United States v. Williams, 444 F.3d
250, 253-54 (4th Cir. 2006) (rejecting Ex Post Facto challenge to
the retroactive application of Justice Breyer’s remedial opinion in
Booker); see also United States v. Dupas, 419 F.3d 916, 919-21 (9th
Cir.) (rejecting Ex Post Facto and Due Process challenges to the
retroactive application of Justice Breyer’s remedial opinion in
Booker), cert. denied, 126 S. Ct. 1484 (2006); United States v.
Jamison, 416 F.3d 538, 539-40 (7th Cir. 2005) (same); United States
v. Lata, 415 F.3d 107, 110-11 (1st Cir. 2005) (same); United States
v. Scroggins, 411 F.3d 572, 575-77 (5th Cir. 2005) (same); United
States v. Duncan, 400 F.3d 1297, 1307 (11th Cir.) (same), cert.
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denied, 126 S. Ct. 432 (2005). In fact, Thomas received a sentence
below the maximum sentence he could have received under the
formerly mandatory Guidelines regime.* Accordingly, we decline to
disturb the sentence on these constitutional grounds.
Thomas further contends that the 108-month sentence is
unreasonable because it is greater than necessary to comply with
the sentencing purposes set forth in 18 U.S.C. § 3553. After
reviewing the record, we find that the district court properly
calculated the Guidelines range, treated the Guidelines range as
advisory, and weighed the relevant § 3553 factors. The sentence,
which was at the bottom end of the Guidelines range and well below
the statutory maximum of twenty years, is presumptively reasonable.
See United States v. Green, 436 F.3d 449, 457 (4th Cir. 2006).
Because Thomas has failed to rebut this presumption, we affirm the
sentence.
AFFIRMED
*
We note that Thomas assumed, for the purposes of his
constitutional challenges, that “the maximum Guideline range,
unadorned by judicially determined enhancements, became the
statutory maximum for constitutional considerations” after the
Court’s Sixth Amendment holdings in Blakely v. Washington, 542 U.S.
296 (2004), and Booker. Appellant Br. at 7. We follow the
reasoning of our sister circuits in rejecting this position as
well. See United States v. Wade, 435 F.3d 829, 832 (8th Cir. 2006)
(per curiam); United States v. Perez-Ruiz, 421 F.3d 11, 15 (1st
Cir.), cert. denied, 126 S. Ct. 1092 (2006).
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