United States v. Arcediano

81 F. App'x 235

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 14, 2003
• Docket: No. 03-30043; D.C. No. CR-01-00162-AJB
• Status: Published

Opinion

MEMORANDUM

**

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.

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.