United States v. Arcand

139 F. App'x 912

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 22, 2005
• Docket: No. 03-50586
• Status: Published

Opinion

MEMORANDUM

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1. The allegation that the fraud targeted elderly victims was not “essential,” see United States v. Miller, 471 U.S. 130, 145, 105 S.Ct. 1811, 85 L.Ed.2d 99 (1985), to the underlying charges of mail fraud by means of telemarketing. See 18 U.S.C. §§ 1341, 2326. The government was required to prove the same underlying conduct, even without the elderly victims allegation. See United States v. Sua, 307 F.3d 1150, 1155 (9th Cir.2002). The indictment contained sufficient information to allow Arcand to anticipate what evidence would be presented at trial. See United States v. Antonakeas, 255 F.3d 714, 722 (9th Cir.2001).

2. Arcand argues that his sentence was improperly enhanced based on facts not found beyond a reasonable doubt. See United States v. Booker, — U.S. -, -, 125 S.Ct. 738, 748, 160 L.Ed.2d 621 (2005); Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Arcand preserved this Sixth Amendment objection by raising it below. Accordingly, pursuant to Booker, 125 S.Ct. at 769, we vacate defendant’s sentence and remand for resentencing.

CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED FOR RESENTENCING.

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.