Opinion
Argued and Submitted March 9, 2006.
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Becky S. Walker, Esq., Beverly Reid O'Connell, Esq., Steve Kim, Office of the U.S. Attorney Criminal Division, Los Angeles, CA, for Plaintiff-Appellee.
Karen L. Landau, Esq., Oakland, CA, for Defendant-Appellant.
Appeal from the United States District Court for the Central District of California, Gary L. Taylor, District Judge, Presiding. D.C. No. CR-93-00093-GLT-1.
Before: WARDLAW and RAWLINSON, Circuit Judges, and CEBULL, District Judge.
The Honorable Richard F. Cebull, U.S. District Judge for the District of Montana, sitting by designation.
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.
On appeal, Juan Benito Castro (Castro) challenges his sentence, asserting that the judge's factfinding violated his constitutional rights under the Fifth and Sixth Amendments.
1. Judicial factfinding under an advisory Guidelines regime does not violate the Sixth Amendment. See United States v. Booker, 543 U.S. 220, 250-52, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); see also United States v. Ameline, 409 F.3d 1073, 1081 (9th Cir.2005) (en banc). Booker did not alter the preponderance of the evidence standard for factfinding set forth in United States v. Howard, 894 F.2d 1085, 1090 (9th Cir.1990). See Ameline, 409 F.3d at 1086.
2. The district court was not required to make the drug quantity finding beyond a reasonable doubt to comport with the guarantee of due process contained in the Fifth Amendment. See United States v. Melchor-Zaragoza, 351 F.3d 925, 928 (9th
Page 733.
Cir.2003); see also McMillan v. Pennsylvania, 477 U.S. 79, 84, 90-91, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986); Apprendi v. New Jersey, 530 U.S. 466, 487 n. 13, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
AFFIRMED.