                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-4633



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


KENDALL BLANKENSHIP,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Joseph Robert Goodwin,
District Judge. (CR-04-92)


Submitted:   October 31, 2005          Decided:     November 30, 2005


Before WILKINSON, NIEMEYER, and TRAXLER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, David R. Bungard, Assistant Federal Public
Defender, Charleston, West Virginia, for Appellant. Charles T.
Miller, Acting United States Attorney, Karen B. George, Assistant
United States Attorney, Charleston, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Kendall Blankenship pled guilty to one count of theft of

mail in violation of 18 U.S.C. § 1708 (2000).              Blankenship was

sentenced to ten months’ imprisonment followed by a three-year term

of supervised release.      We affirm the sentence.

            On   appeal,   Blankenship    argues   that    the   retroactive

application of the remedial holding in United States v. Booker, 125

S. Ct. 738 (2005), violates due process.           He asserts that “[d]ue

process, as informed by ex post facto principles, prevents a court

from   retroactively   exposing   [a     defendant]   to   an    increase   in

punishment as the result of an unexpected and indefensible change

to the law.”      Blankenship concludes that, since the sentencing

guidelines were mandatory at the time he committed the offense at

issue, and the Supreme Court’s holdings in Booker and Blakely v.

Washington, 542 U.S. 296 (2004), “limit[] a defendant’s maximum

sentence to that supported by facts found by a jury beyond a

reasonable doubt or pleaded to by the defendant[,]” his sentence,

based on judicially found facts, violates his right to due process.

            We have thoroughly reviewed Blakenship’s claim and find

it to be without merit based on the reasoning of our sister

circuits.   See United States v. Dupas, 419 F.3d 916 (9th Cir. 2005)

(rejecting ex post facto claim); 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


                                  - 2 -
F.3d 572, 576 (5th Cir. 2005) (same); United States v. Duncan, 400

F.3d 1297, 1306-08 (11th Cir. 2005) (same), cert. denied, __ S. Ct.

__, 2005 WL 2493971 (U.S. Oct. 11, 2005) (No. 05-5467).

             Blankenship also argues that his ten-month sentence “is

unreasonable because it is greater than necessary to comply with

the purposes of sentencing announced by Congress.”             He asserts the

advisory guideline range “overstates the seriousness of the offense

and impairs his ability to make full and efficient restitution.”

             After   the   Supreme    Court’s     decision     in    Booker,   a

sentencing court is no longer bound by the range prescribed by the

sentencing guidelines.        See United States v. Hughes, 401 F.3d 540,

546   (4th    Cir.   2005).      However,    in    determining      a   sentence

post-Booker, sentencing courts are still required to calculate and

consider the guideline range prescribed thereby as well as the

factors set forth in 18 U.S.C. § 3553(a) (2000).             Id.    As stated in

Hughes, we will affirm a post-Booker sentence if it is both

reasonable and within the statutorily prescribed range.                  Id. at

546-47.

             Blankenship’s ten-month sentence was not only within the

advisory guideline range, but also well below the statutory maximum

of five years.       See 18 U.S.C. § 1708.        Furthermore, the sentence

imposed by the district court was reasonable as it appropriately

treated the guidelines as advisory, calculated and considered the

guideline range, and weighed the relevant § 3553(a) factors.


                                     - 3 -
          Accordingly,   we   affirm    Blankenship’s   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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