Opinion
This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Appeal from the United States District Court for the District of Oregon; Anna J. Brown, District Judge, Presiding.
Robert B. Ross, Asst. U.S. Atty., USPO--Office of the U.S. Attorney, Portland, OR, for Plaintiff-Appellee.
Harrison Stewart Latto, Law Office of Harrison S. Latto, Portland, OR, for Defendant-Appellant.
Page 236.
Before KOZINSKI, SILVERMAN and TALLMAN, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
James Arcediano appeals the sentence imposed following his jury conviction for 47 counts of fraud by wire, radio or television in violation of 18 U.S.C. §§ 1343 and 2.
Arcediano contends that under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the district court plainly erred in not submitting to the jury the amount of loss that the district court used to calculate his offense level, and in sentencing him to a sentence above the sentencing range of 6--10 months for the base offense level. Arcediano concedes, however, that the statutory maximum sentence for wire fraud under 18 U.S.C. § 1343 is five years, and that he was sentenced to less than that maximum. "This court has repeatedly held that Apprendi does not apply to guidelines enhancements where the sentence imposed is within the statutory maximum." United States v. Alli, 344 F.3d 1002, 1009 (9th Cir.2003).
AFFIRMED.