                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 06-4390



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


KELBY DEVONTA BENJAMIN,

                                              Defendant - Appellant.



Appeal from the United States District        Court for the Middle
District of North Carolina, at Durham.         James A. Beaty, Jr.,
District Judge. (1:00-cr-00200-JAB)


Submitted:   March 16, 2007                 Decided:   April 11, 2007


Before WILLIAMS, MOTZ, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Mark E. Edwards, EDWARDS & TRENKLE, PLLC, Durham, North Carolina,
for Appellant. Anna Mills Wagoner, United States Attorney, Sandra
J. Hairston, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            We previously affirmed the conviction of Kelby Devonta

Benjamin but vacated his 360-month sentence and remanded for

resentencing in light of United States v. Booker, 543 U.S. 220

(2005).     At resentencing, Benjamin again received a 360-month

sentence.    He appeals, arguing that his sentence violates ex post

facto principles, as they are incorporated into the concept of due

process.      See Rogers v. Tennessee, 532 U.S. 451, 459 (2000);

Bouie v. Columbia, 378 U.S. 347, 352 (1964).     We affirm.

            Benjamin engaged in a cocaine conspiracy between 1996 and

2000.     He was resentenced after Booker.     Because he had fair

warning at the time of the offense of both the criminality of his

actions and the maximum penalty (life imprisonment; see 21 U.S.C.

§ 841(b)(1) (2000)) to which his criminal actions exposed him,

there was no ex post facto violation.         See United States v.

Davenport, 445 F.3d 366, 369-70 (4th Cir. 2006).

            To the extent that Benjamin contends that Booker altered

the standard of proof required with respect to sentencing factors

used to establish an advisory sentencing guideline range at or

below the statutory maximum, his contention is incorrect.      After

Booker, as before, such sentencing factors are determined by judges

based on a preponderance of the evidence.      See United States v.

Morris, 429 F.3d 65, 72 (4th Cir. 2005) (“Booker does not . . .

move any decision from judge to jury, or change the burden of


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persuasion.     The remedial portion of Booker held that decisions

about sentencing factors will continue to be made by judges, on the

preponderance     of   the   evidence.”)   (internal     quotation     marks

omitted), cert. denied, 127 S. Ct. 121 (2006).           Thus, elements of

the offense must be admitted by the defendant or determined by a

jury beyond a reasonable doubt; however, sentencing factors are

decided by the judge based on the lower standard of proof.

          We accordingly affirm the 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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