United States v. Ruiz

163 F. App'x 557

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 18, 2006
• Docket: No. 05-50554
• Status: Published

Opinion

MEMORANDUM

**

Sandra Ruiz appeals the sentence imposed following her jury conviction of one count of conspiracy, in violation of 18 U.S.C. § 371, and two counts of making false statements to the Department of Housing and Urban Development, in violation of 18 U.S.C. § 1010. The district court imposed the sentence after the Supreme Court in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), rendered the Sentencing Guidelines advisory, such that the district judges could permissibly increase a sentence based on facts not proved to the jury.

Ruiz contends that because her offenses were committed before the date of the Booker the decision, the ex post facto principles inherent in the Due Process Clause, taken together with Booker’s Sixth Amendment ruling, barred the district court from imposing a sentence greater than the Guidelines range based on facts proved to the jury. This contention is foreclosed by United States v. Dupas, 419 F.3d 916, 919-921 (9th Cir.2005) (holding that retroactive application of the Booker remedial opinion did not violate ex post facto principles incorporated into the Due Process Clause).

In her Reply Brief, Ruiz contends for the first time that because her enhancements are the product of “statutory changes” activated by Booker, the enhancements violate the Ex Post Facto Clause of Article I, Section 9, of the Constitution. This contention is likewise foreclosed. See Dupas, supra., at 920 n. 3 (rejecting ex post facto challenge to retroactive application of Booker remedial opinion after noting that the Ex Post Facto Clause of Article I, Section 9, applies only to changes in the law resulting from legislative or executive action).

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.