                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 06-4129



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


DAVID LYNCH,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins. Robert E. Maxwell, Senior
District Judge. (2:01-cr-00012-REM)


Submitted:   July 17, 2006                 Decided:   July 31, 2006


Before WILKINSON, WILLIAMS, and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


James R. Fox, WARNER LAW OFFICES, PLLC, Charleston, West Virginia,
for Appellant. Rita R. Valdrini, Acting United States Attorney,
Stephen D. Warner, Assistant United States Attorney, Elkins, West
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

            David Lynch appeals his sentence imposed after this court

vacated    his   sentence   and    remanded    to    the   district   court   for

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

(2005), and United States v. Hughes, 401 F.3d 540, 547 (4th Cir.

2005).      At resentencing, the district court rejected Lynch’s

request for a jury trial on those facts that increased his offense

level.     The district court considered Booker, Hughes and the 18

U.S.C. § 3553(a) (2000) factors and sentenced Lynch to the same

sentence imposed under the mandatory guidelines scheme. On appeal,

Lynch contends:      (1) he should have been given a jury trial to

determine the factual issues; (2) the court’s factual findings were

clearly erroneous; and (3) the Supreme Court’s decision to hold

that      the    Sentencing       Guidelines        are    now   advisory     is

unconstitutional.     We affirm.

            At the original sentencing, the district court held a

hearing and listened to witness testimony prior to determining the

facts that increased Lynch’s offense level.                On appeal, we found

there was no error.         After the subsequent remand, there was no

authority for the court to convene a jury trial in order to

determine the factual findings.         See Hughes, 401 F.3d at 560.

            Because we found no error with respect to the district

court’s factual findings, we will not revisit the issue in this




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appeal as it is the law of the case.      United States v. Aramony, 166

F.3d 655, 661 (4th Cir. 1999).

            Finally, Lynch’s argument that it is unconstitutional for

the guidelines to be advisory is without merit.

            Accordingly,   we   affirm   the   district   court’s   amended

judgment.    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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