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. 1 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…