                            UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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)


                                    2
(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


                                     3
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.


                                   4
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).

                                         5
