Bacon

MEMORANDUM ***

Patrick Bacon appeals from his sentence for one count of armed bank robbery in violation of 18 U.S.C. §§ 2113 (a), (d). Bacon committed his crime and entered a plea agreement before the Supreme Court decided United States v. Booker, 543 U.S. 220 , 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005), but was sentenced two days after Booker was decided. Bacon makes three arguments about why his sentence was unconstitutional. We do not agree with any of them, and so affirm.

First, Bacon claims that his post- Booker sentence violates the Ex Post Facto Clause. This challenge fails, however, because the Ex Post Facto Clause does not apply to judicial interpretations of statutes. See Marks v. United States, 430 U.S. 188, 191 , 97 S.Ct. 990 , 51 L.Ed.2d 260 (1977); United States v. Ruiz, 935 F.2d 1033, 1035 (9th Cir.1991).

Second, Bacon contends that his post-Booker sentence violates the ex post facto component of the Due Process Clause. This challenge is, however, foreclosed by United States v. Dupas, 419 F.3d 916 (9th Cir.2005), which held that the “retroactivity principles of the Fifth Amendment’s Due Process Clause” do not preclude the retroactive application of Booker. Id. at…