                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                       December 1, 2005
                                 TENTH CIRCUIT
                                                                         Clerk of Court

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 05-3109
          v.                                             D. Kansas
 DAVID K. WIENS,                                (D.C. No. 03-10187-01 JTM)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before TACHA, Chief Circuit Judge, ANDERSON and HARTZ, Circuit Judges.


      On April 13, 2004, David Wiens pleaded guilty to a charge of conspiracy to

manufacture the controlled substances psilocin and psilocybin. See 21 U.S.C.

§ 841(a)(1). The presentence report (PSR) computed a guidelines sentencing

range of 41-51 months. On July 15, 2004, Mr. Wiens filed objections to the PSR,

arguing that under Blakely v. Washington, 542 U.S. 296 (2004), his sentence


      *
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
could not be enhanced using facts (the quantity of drugs and his position in the

criminal hierarchy) not charged in the indictment or admitted when he entered his

plea. Without those facts, the resulting guidelines range was zero to six months.

      Before Mr. Wiens was sentenced, however, United States v. Booker, 125

S. Ct. 738 (2005), was decided. Relying on due process and ex post facto

doctrine, Mr. Wiens then filed a memorandum contending that because his crime

occurred before Booker was decided, he could not be sentenced to more than the

guidelines range based on admitted facts. The district court rejected the

argument, considered the guidelines and the factors set forth in 18 U.S.C.

§ 3553(a), and sentenced Mr. Wiens to 24 months’ imprisonment.

      On appeal Mr. Wiens again argues that the retroactive application of the

remedial portion of Booker to his sentencing violated the Due Process Clause.

See Marks v. United States, 430 U.S. 188, 191-92 (1977) (Due Process Clause

protects against judicial infringement of the interests served by Ex Post Facto

Clause). His argument is answered by this court’s recent decision in United

States v. Rines, 419 F.3d 1104 (10th Cir. 2005), in which we rejected the same

argument. Noting that the Booker remedial majority explicitly instructed that its

holding be applied to “‘all cases on direct review[,]’ [w]e decline[d] Defendant’s

invitation to hold that the Supreme Court ordered us to violate the Constitution.”

Id. at 1106 (quoting Booker, 125 S. Ct. at 769). We also noted that “Defendant


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was not deprived of constitutionally required notice” because “[t]he only

difference between the Booker regime under which his sentence is determined and

the regime he would have anticipated at the time of his offense is that the

guidelines are not mandatory.” Id. at 1107. Because the defendant “was

sentenced within the guidelines range, . . . he cannot complain of any

unanticipated harshness.” Id. Mr. Wiens has actually been the beneficiary of

unanticipated leniency. At the time his crime was committed, neither Blakely nor

Booker had been decided, and, as set forth in the PSR, the guidelines called for a

sentencing range of 41-51 months, about twice his actual sentence.

      We AFFIRM the judgment below.

                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge




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