                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 06-4027



UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee,

          versus


DAVID CARPENTER,

                                                 Defendant - Appellant.


Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Joseph Robert Goodwin,
District Judge. (CR-05-101)


Submitted:   August 16, 2006                 Decided:   October 19, 2006


Before WILLIAMS and TRAXLER, Circuit Judges, and Henry F. FLOYD,
United States District Judge for the District of South Carolina,
sitting by designation.


Affirmed by unpublished per curiam opinion.


Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, Michael L. Desautels, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, West
Virginia, for Appellant.      Charles T. Miller, United States
Attorney, Joanne Vella Kirby, 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Unpublished opinions are not binding precedent in this circuit.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:

     David Carpenter appeals the sentence imposed on him for being

a felon in possession of a firearm, in violation of 18 U.S.C.A.

§ 922(g)(1) (West 2000). Although the district court plainly erred

by failing to give Carpenter notice of its intent to vary upwardly

from the sentencing guidelines, we exercise our discretion not to

notice   the   plain   error   and   affirm     Carpenter’s   sentence   as

reasonable.



                                     I.

     On December 28, 2003, Carpenter accompanied his wife Theresa

to the St. Albans, West Virginia home of Theresa’s ex-husband,

Thomas Yoder, to confront Yoder about allegations of child abuse

that Yoder had made against Carpenter.          Carpenter remained in the

car while Theresa went inside to discuss the allegations with

Yoder.   When Theresa returned to the car and prepared to leave,

Yoder came out of the home and threatened Carpenter.           As Theresa

and Carpenter drove away, Carpenter fired three shots from a pistol

out of the front passenger window.

     The gunfire was reported to the St. Albans police department,

who responded to the scene.     Yoder provided a detailed description

of Carpenter’s car, and a short time later the police located the

car and initiated a traffic stop.         Inside the car, the police found

a Jennings .22 caliber semi-automatic pistol underneath the front


                                     2
passenger seat.      Carpenter, a convicted felon, later admitted that

he fired the pistol.

        Carpenter pleaded guilty to a one count indictment charging

him with being a felon in possession of a firearm, in violation of

18 U.S.C.A. § 922(g)(1).         The Presentence Report (PSR) recommended

a base offense level of 14, see U.S. Sentencing Guidelines Manual

§   2K2.1(a)(6)(A)       (2004),     and   a   4   level    enhancement    because

Carpenter possessed the firearm in connection with committing

another felony offense, see id. § 2K2.1(b)(5), namely, the West

Virginia felony of wanton endangerment involving a firearm, see W.

Va. Code § 61-7-12 (2005).            The PSR also recommended a 3 level

downward adjustment for acceptance of responsibility.

      Carpenter objected to the enhancement based on the felony of

wanton endangerment involving a firearm, contending that there was

“not sufficient proof that the firing of the firearm ‘create[d] a

substantial risk of death or serious bodily injury to another.’”

(J.A.    at   149   (quoting    W.   Va.   Code    §    61-7-12.)(alteration      in

original).)      Because of Carpenter’s objection, the district court

received      evidence   at    his   sentencing        hearing   to   determine   if

Carpenter was responsible for wanton endangerment involving a

firearm.      Carpenter presented testimony from his wife Theresa, ATF

Agent Shannon Sullivan, and Sergeant T.A. Kemper of the St. Albans

Police Department about where the shots were fired and the spent

shells recovered. After hearing this testimony, the district court


                                           3
agreed that the evidence did not “show the necessary substantial

risk of death or serious bodily injury that would be necessary to

find the felony enhancement.”          (J.A. at 99.)      The district court

noted, however, that it was not “deprecat[ing] the seriousness” of

Carpenter’s actions and would “deal with it later.”             (J.A. at 99.)

      The district court then determined that the advisory guideline

range without the felony enhancement and with a decrease for

acceptance of responsibility would be 15-21 months.                  Carpenter

allocuted by stating, “I know what I did was wrong.             And I didn’t

shoot at nobody [sic].       I shot at the ground.        I knew it was wrong

and I shouldn’t have possessed the gun, but I did.            And I’m sorry.”

(J.A. at 110.)

      Thereafter, the district court sentenced him to 30 months’

imprisonment.        The district court noted that the sentence was

outside the guideline range, but concluded that a variance sentence

was necessary to take into account factors under 18 U.S.C.A.

§   3553(a)   that    were   not   addressed   by   the   advisory   guideline

sentence.     Carpenter timely noted an appeal of his sentence.



                                      II.

      On appeal, Carpenter raises three issues: (1) the district

court erred by failing to provide notice of its intent to vary

upwardly from the guideline range; (2) the retroactive application

of the remedial scheme of United States v. Booker, 543 U.S. 220


                                       4
(2005), which makes the guidelines advisory and allows for district

court    discretion   to   sentence        outside   the   guideline   range,

represents ex post facto decisionmaking that violates due process;

and (3) the sentence imposed was unreasonable.              We address each

argument in turn.



                                      A.

     Carpenter is correct that the district court erred by failing

to provide notice of its intent to vary upwardly from the guideline

range. Rule 32 of the Federal Rules of Criminal Procedure requires

the district court to give “reasonable notice” to the parties

before it departs from the guideline sentencing range “on a ground

not identified for departure either in the presentence report or in

a party’s prehearing submission.”            Fed. R. Crim. P. 32(h).1      In

United States v. Davenport, 445 F.3d 366 (4th Cir. 2006), we held

that Rule 32(h)’s requirement of “notice of an intent to depart or

vary from the guidelines remains a critical part of sentencing




     1
      Rule 32(h) states,
“Before the court may depart from the applicable sentencing range
on a ground not identified for departure either in the presentence
report or in a party’s prehearing submission, the court must give
the parties reasonable notice that it is contemplating such a
departure. The notice must specify any ground on which the court
is contemplating a departure.” Fed. R. Crim P. 32(h).

                                      5
post-Booker.”   Id. at 371.   The district court therefore erred in

failing to provide Carpenter notice.2

     Carpenter did not object to the lack of notice, but he

contends that his failure “to lodge an objection is due to the lack

of opportunity to make such an objection.” (Appellant’s Br. at 8.)

Nevertheless, we have stated that in order to preserve an objection

for harmless error review a defendant must object to the lack of

notice under Rule 32(h) either at the hearing –- after the court

announces its sentence –- or in a post-hearing motion.       United

States v. Spring, 305 F.3d 276, 281 (4th Cir. 2002).        Because

Carpenter did not object at either time, we review for plain error

only.    Id.

     In Spring, we concluded that failure to provide notice under

Rule 32(h) is plain error that affects a defendant’s substantial

rights.    Id. at 282 (“The error was plain because the decision to

depart upward without comment from the parties violated the clear

direction of [the Rule].   And, the error resulted in an increased

sentence and therefore affected substantial rights.”). Although in

Spring we exercised our discretion to notice and correct the error,

we did so because the lack of notice “impaired [the defendant’s]

opportunity to be heard on an important matter affecting his



     2
      Because United States v. Davenport, 445 F.3d 366 (4th Cir.
2006) had not been decided at the time of Carpenter’s sentencing,
we do not fault the district court for failing to comply with that
decision.

                                  6
sentence and because his arguments against the upward departure

have sufficient weight that the district court, in the exercise of

its broad discretion, might accept them when [the defendant] has a

chance to present them.”    Id. at 283 (emphases added).

     In this case, although Carpenter contends that he was harmed

by the lack of notice because he was not given an opportunity to be

heard on his variance sentence, he does not present any argument

that he would have made against the upward variance.             Because

Carpenter has not shown us any argument that he would have made

against the upward variance, much less an argument of sufficient

weight that the district court would have found persuasive, we

exercise our discretion not to notice the district court’s plain

error of failing to provide Carpenter notice under Rule 32(h) of

its intent to impose a variance sentence.



                                   B.

     Carpenter also raises an ex post facto challenge to the

district   court’s   retroactive   application   of   Booker’s   remedial

scheme because the remedial scheme, by treating the sentencing

guidelines as advisory only, increased his potential punishment.

The Ex Post Facto Clause states, “No . . . ex post facto Law shall

be passed.”   U.S. Const. art. I, § 9, cl. 3; see also id., § 10,

cl. 1 (prohibiting states from enacting ex post facto laws).

Recognizing that the Ex Post Facto Clause is a limitation upon the


                                    7
power of the legislature, not the judiciary, Carpenter relies on

the Supreme Court’s decision in Rogers v. Tennessee, 532 U.S. 451

(2001), in which the Court observed that “limitations on ex post

facto judicial decisionmaking are inherent in the notion of due

process.”    Id. at 456.

     In   Davenport,   we   rejected   the   argument   that   retroactive

application of Booker’s remedial opinion violates the Ex Post Facto

Clause.   Davenport, 445 F.3d at 369-70.      We noted that at the time

Davenport committed the crime he was on notice of the maximum

statutory penalty, and because the sentence imposed was less than

that statutory maximum, there was no violation of the Ex Post Facto

Clause.     Id.

     As we noted in Davenport, federal courts have universally

rejected ex post facto challenges to the retroactive application of

Booker, id., including ex post facto challenges based on the Due

Process Clause.    See United States v. Barton, 455 F.3d 649, 654

(6th Cir. 2006); United States v. Pennavaria, 445 F.3d 720, 723-24

(3d Cir. 2006); United States v. Austin, 432 F.3d 598, 599-600 (5th

Cir. 2005); United States v. Jaminson, 416 F.3d 538, 539 (7th Cir.

2005).    We, too, conclude that the district court’s application of

Booker’s remedial opinion did not violate due process through ex

post facto judicial decisionmaking.




                                   8
                                C.

     Finally, Carpenter contends that the district court imposed an

unreasonable sentence.   In considering whether the district court

imposed a reasonable sentence, “we will review the district court’s

legal conclusions de novo and its factual findings for clear

error.”   United States v. Hampton, 441 F.3d 284, 287 (4th Cir.

2006).

     After determining that the 4-level enhancement did not apply,

the district court considered the advisory guideline range and

considered the relevant statutory sentencing factors under 18

U.S.C.A. § 3553(a) (West 2000 & Supp. 2006).    The district court

then concluded that the guideline range failed to account for the

seriousness of the offense of firing a firearm several times in a

residential neighborhood or the history and characteristics of

Carpenter who, as the district court noted, had a number of prior

arrests for violent behavior and problems with alcohol and anger

management.    See Davenport, 445 F.3d at 371-72 (noting that the

district court identified the relevant § 3553(a) factors).      We

conclude that “[a]ll of these considerations support the decision

of the district court to impose a sentence above the advisory

guideline range.”   Id. at 372 (upholding a variance sentence based

on § 3553(a) factors not accounted for by the advisory sentencing

guidelines).




                                 9
       We   also    conclude     that   the    length    of     the    sentence      was

reasonable.         The   advisory      guideline       range    was     a    term   of

imprisonment for 15-21 months.                 The district court sentenced

Carpenter to 30 months.           The district court reasonably concluded

that a variance sentence of an additional 9 months’ imprisonment --

less than one and a half times the top of the advisory guideline

range -- was necessary to account for the fact that Carpenter not

only possessed a gun but fired it in a residential neighborhood.

See United States v. Moreland, 437 F.3d 424, 434 (4th Cir. 2006)

(“The farther the court diverges from the advisory guideline range,

the more compelling the reasons for the divergence must be.”).



                                        III.

       In sum, the district court plainly erred by failing to provide

Carpenter notice of its intent to impose a variance sentence.

Nevertheless, in our discretion we will not recognize the error

because Carpenter has not provided any argument that he would have

made against the variance sentence. We reject Carpenter’s argument

that    the   district     court’s      application      of     Booker’s      advisory

sentencing regime violates due process through ex post facto

judicial decisionmaking or that the district court imposed an

unreasonable sentence.           We therefore affirm the sentence imposed.

We   dispense      with   oral    argument     because    the    facts       and   legal




                                         10
conclusions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                           AFFIRMED




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