United States v. Dumas , 205 F. App'x 142 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5183
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WILLIE LEE DUMAS, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. Joseph Robert Goodwin,
District Judge. (CR-04-54)
Submitted: April 26, 2006 Decided: November 15, 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Affirmed by unpublished per curiam opinion.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, George H. Lancaster, Jr., Assistant Federal
Public Defender, Charleston, West Virginia, for Appellant. Charles
T. Miller, Acting United States Attorney, Miller A. Bushong, III,
Assistant United States Attorney, Beckley, West Virginia, for
Appellee.
*
Judge Luttig was a member of the original panel but did not
participate in this decision. This opinion is filed by a quorum of
the panel pursuant to 28 U.S.C. § 46(d).
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
Willie Lee Dumas, Jr. appeals his resentencing following
this court’s remand. See United States v. Dumas, 135 F. App’x 606
(4th Cir. 2005) (unpublished). For the reasons stated below, we
affirm.
Dumas pled guilty to one count of armed robbery in
violation of 18 U.S.C. § 2113(a),(d) (2000). At sentencing, Dumas
objected to a five-level sentencing enhancement because a firearm
was brandished or possessed during the offense, see U.S. Sentencing
Guidelines Manual § 2B3.1(b)(2)(C) (2003), based on Blakely v.
Washington, 542 U.S. 296 (2004). The district court overruled that
objection and sentenced Dumas to 115 months’ imprisonment. On
appeal, we affirmed Dumas’ conviction, but vacated his sentence and
remanded for resentencing under United States v. Booker, 543 U.S.
220 (2005). On remand, the district court resentenced Dumas to the
identical sentence imposed at the original sentencing.
Dumas now contends that the district court violated his
due process rights, as informed by ex post facto principles, by
imposing the same sentence under Booker rather than under the
mandatory guidelines applicable at the time of his offense. We
find this claim without merit. We have recently followed the lead
of every other circuit to have considered the issue in concluding
that the retroactive application of the remedial portion of Booker
does not violate either due process or ex post facto guarantees.
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United States v. Williams, 444 F.3d 250 (4th Cir. 2006). See
United States v. Dupas, 419 F.3d 916, 919-21 (9th Cir. 2005)
(rejecting ex post facto claim), 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, 110-12 (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, 1306-08
(11th Cir.) (same), cert. denied, 126 S. Ct. 432 (2005). We agree
with our sister circuits that core due process concepts are
satisfied because defendants like Dumas had fair warning of the
statutory maximum sentence and thus knew the consequences of their
actions at the time they committed the offense. Dumas was informed
that if convicted of armed bank robbery, he would face up to
twenty-five years’ imprisonment. We therefore reject Dumas’ ex
post facto claim.
Moreover, a sentence imposed within a properly calculated
guidelines range is presumptively reasonable. United States v.
Green, 436 F.3d 449, 456 (4th Cir. 2006); see also United States v.
Hughes, 401 F.3d 540, 546-47 (4th Cir. 2005) (holding that sentence
must be “within the statutorily prescribed range and . . .
reasonable.”). Here, the district court properly consulted the
guidelines and took them into account in determining Dumas’
sentence, made all the factual findings appropriate for that
determination, considered the sentencing range along with the other
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factors described in § 3553(a), and imposed a sentence that was
within the statutorily prescribed range and reasonable.
We therefore affirm Dumas’ 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
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