Davis

MEMORANDUM **

Teresa Diane Davis appeals the sentence she received after pleading guilty to two counts of conspiracy in violation of 18 U.S.C. § 371 . The substantive crimes for the two conspiracy counts were 18 U.S.C. § 1708 (theft or receipt of stolen mail) in case number CR-03-00272-FCD and 18 U.S.C. § 1344 (2) (bank fraud) in case number CR-03-00389-FCD.

In a supplemental brief, Davis argues that the district court violated her Sixth Amendment rights when it enhanced her sentence on the basis of a fact not proved to a jury beyond a reasonable doubt nor admitted by Davis. In her plea agreement, Davis and the government stipulated a less-than $5,000 loss. Upon sentencing, however, the district court accepted the loss estimate in the presentencing report, a loss in excess of $20,000. Reliance on the $20,000 loss — a fact neither admitted by appellant nor proved to a jury beyond a reasonable doubt — increased Appellant’s guideline sentencing range from nine to fifteen months to twenty-one to twenty-seven months.

Under the then applicable law, relying upon the loss recited in the presentence report violated the Sixth Amendment. See Apprendi v. New Jersey, 530 U.S. 466, 490 , 120…