                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                February 23, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 05-10564
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

LEONARD SCHEER,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                     USDC No. 7:04-CR-17-ALL
                       --------------------

Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

     Leonard Scheer appeals his 120-month sentence following his

guilty plea to being a felon in possession of a firearm.       He

seeks to challenge his sentence in light of United States v.

Booker, 543 U.S. 220 (2005).   Scheer first avers that the

district court erred by not incorporating, through “reverse

incorporation,” the Ex Post Facto Clause into the Due Process

Clause of the Fifth Amendment.   He contends that such

incorporation would protect defendants like him, whose offenses


     *
       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this opinion should not be published and is not precedent except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.
                           No. 05-10564
                                -2-

were committed prior to Booker, by prohibiting the court from

imposing a greater sentence under the now advisory guideline

scheme than was permitted under the mandatory guideline scheme.

     This argument is foreclosed.   See United States v. Austin,

432 F.3d 598, 599-600 (5th Cir. 2005).

     Scheer makes the related arguments that the district court

violated his right to “fair notice under the Due Process Clause

of the Fifth Amendment” by enhancing his sentence based on facts

that were not charged in the indictment and were neither admitted

by him nor found by a jury beyond a reasonable doubt.   Scheer

contends that the remedial portion of Booker’s holding may not be

applied in his case without violating the Due Process and Ex Post

Facto Clauses.   Scheer thus argues that the district court should

have applied the Sentencing Guidelines as mandatory in his case

but should not have enhanced his sentence based on facts that

were not charged in the indictment and were neither admitted by

him nor found by a jury beyond a reasonable doubt.   Scheer

recognizes that this court has rejected these arguments.

     Scheer’s arguments are foreclosed.   See United States v.

Mares, 402 F.3d 511, 519 (5th Cir.) (the “sentencing judge is

entitled to find by a preponderance of the evidence all facts

relevant to the determination of a Guideline sentencing range and

all facts relevant to the determination of a non-Guideline

sentence”), cert. denied, 126 S. Ct. 43 (2005); see also Austin,
                           No. 05-10564
                                -3-

432 F.3d at 599-600.   The judgment of the district court is

AFFIRMED.
