United States v. Juan Benito Castro, AKA Tony R. Lanier

Juan Benito Castro appeals, asserting both that there was a fatal variance between the indictment and the facts presented at trial and that his re-sentencing was unconstitutional because it was based on facts that were found by the district judge, not a jury. We reject his fatal variance claim and affirm his conviction in a separate memorandum disposition filed concurrently herewith.

In United States v. Ameline, 376 F.3d 967 (9th Cir.2004), we held that Blakely v. Washington, — U.S.-, 124 S.Ct. 2531 , 159 L.Ed.2d 403 (2004), applied to the United States Sentencing Guidelines and, thus, the imposition of an enhanced sentence on the basis of judge-found facts violates the Sixth Amendment. After we decided Ameline , but prior to the submission of this case, the Supreme Court granted certiorari in United States v. Booker, 375 F.3d 508 (7th Cir.2004), cert. granted, — U.S. -, 125 S.Ct. 11 , — L.Ed.2d-, 73 U.S.L.W. 3074 (U.S. Aug. 2, 2004) (No. 04-104), and Fanfan v. Unit ed States, No. 03-47, 2004 WL 1723114 (D.Me. June 28, 2004), cert. granted, — U.S.-, 125 S.Ct. 12 , — L.Ed.2d-, 73 U.S.L.W. 3074 (U.S. Aug. 2, 2004) (No. 04-105). Both of these cases deal with the same sentencing…