                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 06-4422



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


PAUL LEE JACKSON,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. W. Craig Broadwater,
District Judge. (3:02-cr-00035-WCB)


Submitted:   July 13, 2007                 Decided:   August 10, 2007


Before MOTZ, KING, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Paul Lee Jackson, Appellant Pro Se.       Thomas Oliver Mucklow,
Assistant United States Attorney, Martinsburg, West Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

               Paul Lee Jackson appeals from his 220-month sentence

imposed after we remanded for resentencing in accordance with

United States v. Booker, 543 U.S. 220 (2005) and United States v.

Hughes, 401 F.3d 540 (4th Cir. 2005).                   He challenges the validity

of his guilty plea and argues that the district court on remand

erred by failing to consider his second motion to withdraw his

plea.    He also argues that the district court erred in determining

his sentencing range based on an offense involving over fifty grams

of crack cocaine, that application of the remedial opinion in

Booker    amounts         to    an    ex     post   facto   violation,     and   that   a

presumption of reasonableness may not be applied to a within-

guidelines sentence.             We affirm.

               To   the    extent          that   Jackson   seeks    to   challenge   the

validity of his guilty plea, these issues are not properly before

the court in this appeal.                   We previously upheld Jackson’s guilty

plea,    and    this      case       was    remanded   to   the   district    court   for

resentencing only.             Any attempts to relitigate the validity of the

conviction are beyond the scope of the remand order.                         See United

States v. Bell, 5 F.3d 64, 67 (4th Cir. 1993).                      Thus, we decline to

consider Jackson’s claims that the substance was not crack cocaine,

the indictment was obtained by the falsification of laboratory

reports, that his plea was invalid because the district court

misinformed him about the possible penalties he faced, and that


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there was no factual basis to support his plea as to count 9 of the

indictment.

           Jackson also contends that the district court erred by

failing to consider his second motion to withdraw his plea.                The

district court denied this motion, noting that the court’s prior

ruling on the motion was final and was upheld on appeal.               Jackson

contends   that   his   new   motion    is   based   on   additional   factual

support, and he asserts that, although he pled guilty to an offense

alleging that he conspired to possess and distribute fifty grams or

more of cocaine base, he was not admitting to his involvement with

that amount. However, when he pled guilty, Jackson did not contest

the drug quantity, but asserted that he merely wanted to challenge

relevant conduct beyond the charges in the indictment.                 We have

held that a defendant may admit facts through “guilty pleas and

stipulations, a defendant’s own statements in open court, and

representations by counsel.”           United States v. Revels, 455 F.3d

448, 450 (4th Cir.) (citations omitted), cert. denied, 127 S. Ct.

299 (2006).   Here, Jackson pled guilty to the charge alleging his

involvement in a conspiracy to possess and distribute more than

fifty grams of crack cocaine.          In his prior appeal, we upheld the

district court’s denial of Jackson’s motion to withdraw the plea in

which he asserted that the substance was not crack cocaine.                 We

find that the district court did not abuse its discretion in

denying Jackson’s second motion to withdraw the plea.             See United


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States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000) (providing

standard for motion to withdraw plea).

          Regarding his sentence, Jackson contends that he should

not have been held responsible for fifty grams or more of cocaine

base and that the plea did not constitute an admission that the

substance was crack cocaine.         As stated earlier, a defendant may

admit facts through “guilty pleas and stipulations, a defendant’s

own statements in open court, and representations by counsel.”

Revels, 455 F.3d at 450 (citations omitted).           In whatever manner a

defendant admits to facts, “they may serve once admitted as the

basis for an increased sentence without being proved to a jury

beyond a reasonable doubt.”     Id.    Here, Jackson pled guilty to, and

thus admitted, the charge alleging his involvement in a conspiracy

to possess with intent to distribute and to distribute more than

fifty grams of crack cocaine.           This admission by his plea is

sufficient to establish that Jackson was accountable for at least

fifty grams of crack cocaine.

          Jackson next argues that the district court violated the

Ex Post Facto Clause when it increased his sentence on the basis of

facts not charged in the indictment or proven to a jury beyond a

reasonable   doubt   pursuant   to    the   remedial    holding   in   United

States v. Booker, 543 U.S. at 244-71.        We have previously rejected

this challenge.      See United States v. Davenport, 445 F.3d 366,

369-70 (4th Cir. 2006) (holding that retroactive application of


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remedial holding of Booker did not violate Ex Post Facto Clause

because the defendant was on notice of statutory penalty when he

committed the crime); United States v. Williams, 444 F.3d 250, 254

(4th Cir. 2006), petition for cert. filed,                     U.S.L.W.         (U.S.

July 10, 2006) (No. 06-5152).             Because Jackson was on notice when

he committed his crimes that the maximum statutory penalty was life

imprisonment, Jackson may obtain no relief on this claim.

            Jackson’s        final    argument—that           application       of    a

presumption of reasonableness to a within-guidelines sentence is

contrary to Booker—is foreclosed by the Supreme Court’s recent

decision in Rita v. United States,              551 U.S.       , 2007 WL 1772146,

at **6-14 (U.S. June 21, 2007) (No. 06-5754), in which the Court

upheld    the     application        of    a     rebuttable      presumption         of

reasonableness of a within-guidelines sentence.                 See United States

v. Green, 436 F.3d 449, 457 (4th Cir.) (“[A] sentence imposed

within    the    properly    calculated        [g]uidelines     range   .   .    .   is

presumptively reasonable.”) (internal quotation marks and citation

omitted), cert. denied, 126 S. Ct. 2309 (2006). Here, the district

court was clearly aware of its authority to impose a sentence

outside    the    advisory    guideline        range,   but    determined,      after

considering all the relevant factors, that the sentencing range was

reasonable and appropriate.

            Accordingly, we affirm Jackson’s sentence.                  We dispense

with oral argument because the facts and legal contentions are


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adequately presented in the materials before the court and argument

would not aid the decisional process.



                                                          AFFIRMED




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