United States of America v. Booker, 543 U.S. 220 2005

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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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