United States v. Benson

MEMORANDUM ** Adedayo Benson appeals the sentence imposed following his guilty plea to conspiracy, attempted use of unauthorized access device, use of unauthorized access device, and aiding and abetting, in violation of 18 U.S.C. §§ 1029 (a)(2), (b)(1), and (b)(2). Benson contends that the district court erred under United States v. Booker, 543 U.S. 220 , 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005), by enhancing his sentence and imposing an upward departure based on facts that were neither found by a jury nor admitted. This contention lacks merit because increasing a sentence based on judicial fact-finding does not run afoul of the Sixth Amendment where, as here, the sentence was imposed under an advisory guidelines system. United States v. Ameline, 409 F.3d 1073, 1078 (9th Cir.2005) (en banc) (“A constitutional infirmity arises only when extra-verdict findings are made in a mandatory guidelines system.”). Because Benson does not argue that his sentence is otherwise unreasonable, we AFFIRM. 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.