Sarah

MEMORANDUM **

Dongerial Alexis Sarah appeals his 346-month sentence imposed following conviction for armed bank robbery, in violation of 18 U.S.C. § 2113 and use of a firearm during a crime of violence, in violation of 18 U.S.C. § 924 (c). We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742 . We affirm.

Sarah contends that the district court erred, in light of the constitutional rule recognized in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), when it applied the seven year mandatory minimum sentence under 18 U.S.C. § 924 (c)(l)(A)(ii), because whether he “brandished” a weapon during the robbery was not found beyond a reasonable doubt at trial.

We need not decide whether “brandishing” must be submitted and proven at trial, because we conclude that Apprendi has no application here. Sarah concedes that he was subject to a maximum sentence of 360 months under the facts found by the jury. The record shows that the district court imposed a 346-month term of imprisonment. Because Sarah was sentenced below the statutory maximum, Apprendi does not apply. See United States v. Garcia-Sanchez, 238 F.3d 1200, 1201 (9th…