                                                                                        United States Court of Appeals
                                                                                                 Fifth Circuit
                                                                                              F I L E D
                     IN THE UNITED STATES COURT OF APPEALS
                                                                                             December 14, 2006
                                  FOR THE FIFTH CIRCUIT
                                                                                           Charles R. Fulbruge III
                                                                                                   Clerk


                                           No. 05-20366
                                         Summary Calendar



UNITED STATES OF AMERICA,

                                                                                         Plaintiff-
                                                          Appellee,

                                                 versus

BYRON WALTON,

                                                                                       Defendant-
                                                          Appellant.

                      --------------------------------------------------------------
                           Appeal from the United States District Court
                                 for the Southern District of Texas
                                    USDC No. 4:02-CR-577-14
                      --------------------------------------------------------------

Before DeMOSS, STEWART and PRADO

PER CURIAM:*

       Byron Walton appeals his 63-month sentence imposed following his plea of guilty to aiding

and abetting the possession with intent to distribute 3, 4-Methylenedioxymethamphetamine (MDMA).

Walton argues that, although he is entitled to the retroactive application of the Sixth Amendment



       *
           Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.

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holding in United States v. Booker, 543 U.S. 220 (2005), the remedial portion of Booker’s holding,

which made the Sentencing Guidelines advisory, may not be applied in his case without violating the

Due Process and Ex Post Facto Clauses of the Constitution. As Walton concedes, his argument is

foreclosed by circuit precedent. See United States v. Austin, 432 F.3d 598, 599-600 (5th Cir. 2005);

United States v. Scroggins, 411 F.3d 572, 575-76 (5th Cir. 2005).

        Walton additionally argues that his sentence is unreasonable because the district court

misapplied the Guidelines by increasing his sentence based on information concerning the relevant

drug quantity, although such information was not proved beyond a reasonable doubt. After Booker,

“[t]he sentencing judge is entitled to find by a preponderance of the evidence all the facts relevant to

the determination of a Guideline sentencing range and all facts relevant to the determination of a non-

Guidelines sentence.” United States v. Mares, 402 F.3d 511, 519 (5th Cir.), cert. denied, 126 S. Ct.

43 (2005). Walton’s sentence fell at the lowest end of his properly calculated advisory guidelines

range and is presumptively reasonable. See United State v. Alonzo, 435 F.3d 551, 554 (5th Cir.

2006). Giving “great deference” to such a sentence, we conclude that Walton’s sentence was not

unreasonable. See id.

        AFFIRMED.




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