Barnbaum

MEMORANDUM **

Gerald Barnbaum appeals the 120-month sentence imposed following his guilty plea conviction for mail fraud, distribution of a controlled substance, using registration issued to another, and identity theft, in violation of 21 U.S.C. §§ 941 (a)(1) & 843(a)(2), and 18 U.S.C. §§ 1341 , 2(b) & 1028(a)(7). We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm.

Appellant contends that the district court did not make the findings mandated by Koon v. United States, 518 U.S. 81 , 116 S.Ct. 2035 , 135 L.Ed.2d 392 (1996), to justify its upward departure. We disagree. The record is clear that the district court found this an “extraordinary case,” gave thoughtful consideration to the issue and departed upward for the reasons stated in the government’s brief, which it incorporated. See id. at 93-94, 98 (recognizing that a district court may depart in an atypical case if it finds that certain aspects of the case take it outside the heartland).

Appellant also contends that this case should be remanded pursuant to United States v. Booker, — U.S. -, 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005) because he was sentenced under the mandatory guidelines. We disagree. Although…