Opinion
No. 08-10086.
The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed July 27, 2009.
Anne Pings, Esquire, Office of the U.S. Attorney, Sacramento, CA, for Plaintiff-Appellee.
Christopher Haydn-Myer, Esquire, Law Offices of Christopher Haydn-Myer, Sacramento, CA, for Defendant-Appellant.
Appeal from the United States District Court for the Eastern District of California, Frank C. Damrell, Jr., District Judge, Presiding. D.C. No. CR-06-00244-FCD.
Before: SCHROEDER, THOMAS, and WARDLAW, Circuit Judges.
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Michael Edward Slaton appeals from the 170-month sentence imposed following his guilty-plea conviction for possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Slaton contends that his Sixth Amendment rights were violated when the district court applied a two-level enhancement for reckless endangerment during flight because the court relied on facts that Slaton did not admit to, and that were not found by a jury beyond a reasonable doubt. This contention fails because the enhancement did not result in a sentence above the applicable statutory range. See Cunningham v. California, 549 U.S. 270, 292, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007) (citing United States v. Booker, 543 U.S. 220, 233, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)); see also United States v. Dupas, 419 F.3d 916, 919 (9th Cir. 2005) (recognizing that the Sentencing Guidelines regime allows the sentencing judge, as distinct from the jury, to make the findings of fact necessary to determine the Guidelines range).
AFFIRMED.