United States v. Smith

MEMORANDUM ** Robert Andrew Smith, III, appeals from the 46-month sentence imposed following his guilty-plea conviction for conspiracy to traffic in counterfeit devices, fraudulent production, use or trafficking of counterfeit access devices, and possession of 15 or more unauthorized devices, all in violation of 18 U.S.C. §§ 1029 (a)(1), (3), and 1029(b). We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm. Smith contends that the district court erred by construing statements made by counsel in a sentencing memorandum as admissions to support a 14-level sentencing enhancement for the amount of loss. Smith further contends that the sentence he received was improper because it was premised on facts that he neither admitted nor were found by a jury beyond a reasonable doubt. A review of the record reflects that the district court’s findings pertaining to the calculation of the advisory Guidelines sentence were supported by a preponderance of the evidence. See United States v. Dare, 425 F.3d 634, 642 (9th Cir.2005). Furthermore, we conclude that the district took into account the appropriate sentencing factors and that the ultimate sentence imposed was not unreasonable. Accordingly, the sentence is affirmed. AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.