                           In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 05-1045
UNITED STATES OF AMERICA,
                                             Plaintiff-Appellee,
                              v.

SHAWNDALE L. JAMISON,
                                         Defendant-Appellant.
                        ____________
          Appeal from the United States District Court
             for the Western District of Wisconsin.
           No. 04 CR 133—John C. Shabaz, Judge.
                        ____________
      ARGUED JUNE 9, 2005—DECIDED JULY 20, 2005
                    ____________




  Before BAUER, RIPPLE, and MANION, Circuit Judges.
  BAUER, Circuit Judge. Shawndale Jamison appeals his
sentence on the ground that it violates the ex post facto
clause of the United States Constitution. Since Jamison had
fair warning of the possible penalties for his actions, we
find that his sentence passes muster under ex post facto and
due process principles and affirm.


                        Background
  In 2004, Jamison was indicted on four counts of distribut-
ing cocaine base. He pled guilty to count one of the indict-
2                                                No. 05-1045

ment and admitted that his total offense conduct was at
least two grams, but less than three grams of cocaine base.
The probation officer summarized Jamison’s relevant
conduct and concluded that he was responsible for
3.8 grams of cocaine base. This elevated figure included an
amount from a June 22, 2004 cocaine sale in which Jamison
denies that he participated.
  The district court determined that the Sentencing
Guidelines could not be constitutionally applied in this case,
given that Jamison did not stipulate to all the facts support-
ing the increased drug amount, and sentenced Jamison to
38 months in prison, treating the Guidelines as advisory.
The court then imposed an alternative sentence, in the
event that the Guidelines were found to be constitutional by
the Supreme Court, also of 38 months imprisonment.


                         Discussion
  In United States v. Booker, 125 S.Ct. 738 (2005), the
Supreme Court, in two majority opinions, held that (1) the
constitutional rule announced in Blakely v. Washington, 124
S.Ct. 2531 (2004), applies to the Guidelines; and (2) the
Guidelines are no longer mandatory, but advisory. 125 S.Ct.
at 745-69. Jamison claims that the application of the
remedial holding of Booker, rendering the Guidelines ad-
visory, violates the ex post facto clause of the Constitution
by exposing him to a longer maximum sentence. Jamison
essentially seeks a sentence that comports with the Sixth
Amendment requirements of Booker, but wants to avoid the
possibility of a higher sentence under the remedial holding
of Booker. Unfortunately for Jamison, the Supreme Court
clearly instructed that both holdings should be applied to
all cases on direct review. 125 S.Ct. at 769.
  Our analysis of Jamison’s claim is controlled by Rogers v.
Tennessee, 532 U.S. 451 (2001). While reiterating that the
ex post facto clause is a limitation upon the legislature and
No. 05-1045                                                 3

does not apply to the courts, the Court also recognized that
“limitations on ex post facto judicial decisionmaking are
inherent in the notion of due process.” Id. at 456. These
judicial limitations are most concisely reflected in the basic
principle of fair warning. The Court rested its rationale on
“core concepts of notice, foreseeability, and, in particular,
the right to fair warning as those concepts bear on the
constitutionality of attaching criminal penalties to what
previously had been innocent conduct.” Id. at 459.
  Jamison knew that he was committing a crime at the time
he distributed cocaine base. The new judicial interpretation
of the law brought about by Booker affects his punishment,
not whether his conduct was innocent. Distributing cocaine
base was not made a crime by the Court’s decision in
Booker. Jamison also had fair warning that distributing
cocaine base was punishable by a prison term of up to
twenty years, as spelled out in the United States Code.
Jamison had sufficient warning of the possible consequences
of his actions, and his sentence does not run afoul of any of
the core concepts discussed in Rogers. We therefore join the
Fifth and Eleventh Circuits in rejecting an ex post facto
claim based on the remedial holding in Booker. See
United States v. Scroggins, 2005 WL 1324808 (5th Cir.
2005); United States v. Duncan, 400 F.3d 1297 (11th Cir.
2005).


                        Conclusion
  The sentence imposed by the district court does not
violate the ex post facto or due process clauses of the
Constitution and is AFFIRMED.
4                                         No. 05-1045

A true Copy:
      Teste:

                    ________________________________
                    Clerk of the United States Court of
                      Appeals for the Seventh Circuit




               USCA-02-C-0072—7-20-05
