OPINION OF THE COURT

Appellant Jorge Aldea was convicted by a jury of conspiracy to distribute in excess of five kilograms of cocaine. The District Court found that he conspired to distribute over 150 kilograms of cocaine and sentenced Aldea pursuant to the then mandatory Sentencing Guidelines to 280 months of incarceration. On appeal, with Blakely and Booker having been decided in the interim, we affirmed Aldea’s conviction but remanded for resentencing. We ruled as follows:

Jorge Aldea argues that his sentence of 280 months exceeded the maximum possible sentence supported by the jury verdict and, thus, violates Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). He also argues that, because he committed his offense before the Supreme Court decided Booker, the Ex Post Facto clause prevents imposition of a sentence that includes any enhancement. Having determined that Booker issues are best resolved by the District Court in the first instance, we will vacate his sentence and remand for resentencing in accordance with that opinion. (Citations omitted.)

United States v. Jorge Aldea, 174 Fed. Appx. 52, 60 (Not Precedential).

On remand, the District Court rejected Aldea’s argument that imposition of a sentence greater than 151 months of incarceration would be unlawful and sentenced him to 240 months. This appeal followed.

Aldea insists that the District Court’s 240 month sentence violated his Due Process right to pi’otection from an ex post facto increase in punishment. Aldea candidly acknowledges, however, that we have held to the contrary in United States v. Pennavaria, 445 F.3d 720 (3d Cir. 2006), and explains that he is pursuing this appeal in order to be in a position to seek review in the Supreme Court of the United States.

Accordingly, the judgment of the District Court will be affirmed.