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NOT FOR PUBLICATION.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 Eastern District of California Frank C. Damrell, District Judge, Presiding.
Before BRUNETTI, KLEINFELD and THOMAS, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.
Don Nguyen appeals the sentence imposed upon him by the district court as a result of his conviction of two counts of Conspiracy to Defraud the United States in violation of 18 U.S.C. § 371, and four counts of Procuring False Documents in Connection with Naturalization in violation
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of 18 U.S.C. § 1425(a). We affirm. Because the parties are familiar with the factual and procedural history of this case, we will not recount it here.
I
The district court did not err by imposing a six-level increase pursuant to U.S. S.G. § 2L2.1(b)(2)(C), which permits an upward adjustment for document trafficking offenses if the offense involved six or more documents. A review of the record indicates that there was sufficient evidence to support this enhancement because the prosecution proved by a preponderance of the evidence that Nguyen was involved with at least 100 documents. See United States v. Maldonado, 215 F.3d 1046, 1051 (9th Cir.2000) (internal citations omitted).
II
The district court properly refused to grant a three-level decrease under U.S. S.G. § 2L2.1(b)(1), which applies if the defendant committed the offense "other than for profit." U.S. S.G. § 2L2.1(b)(1). Both witness testimony at trial and the pre-sentence report provided ample basis for the district court to conclude that Nguyen engaged in the scheme for profit. See United States v. Buenrostro-Torres, 24 F.3d 1173, 1175 (9th Cir.1994).
III
The district court did not err by imposing a four-level increase for Nguyen's role as a leader and organizer pursuant to U.S. S.G. § 3B1.1, which allows an increase if the defendant "was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive." U.S. S.G. § 3B1.1(a). A review of the record indicates that there is sufficient evidence to support a finding that Nguyen organized, led and managed at least some of the testing operations, that the operation involved at least five participants and that Nguyen exercised authority over at least one of those participants. See United States v. Mares-Molina, 913 F.2d 770, 773-74 (9th Cir.1990).
IV
Nguyen was sentenced within the statutory maximum, so there was no violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) in this case. See United States v. Hernandez-Guardado, 228 F.3d 1017, 1027 (9th Cir.2000) (rejecting proposition that Apprendi applies to a sentencing enhancement which increases the sentence, but not beyond the statutory maximum).
AFFIRMED.