United States v. Smith

MEMORANDUM **

We previously affirmed Smith’s conviction for assault with a dangerous weapon, see United States v. Smith, 130 Fed.Appx. 876 (9th Cir.2005), and we now address Smith’s challenge to his sentence.

Smith contends he was sentenced in violation of the Sixth Amendment because the *967 district court (1) increased his base offense level by four levels — from 19 to 23 — due to its finding of serious bodily injury to the victim, and (2) increased his sentencing range on the basis of findings regarding his criminal history. Any Sixth Amendment violation resulting from the enhancement for serious bodily injury is probably harmless in light of the career offender designation which increased Smith’s base offense level to 24, and the career offender designation does not violate the Sixth Amendment because it is based on the fact of prior convictions. See United States v. Moreno-Hernandez ,—F.3d-, 2005 U.S.App. LEXIS 13316, No. 03-30387, slip op. 7773, 7790-91 n. 8 (9th Cir. July 5, 2005). However, Smith’s sentence is tainted by nonconstitutional error: it was enhanced pursuant to mandatory sentencing guidelines. In accordance with the Supreme Court’s decision in United States v.…