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U.S. v. CASTRO

No. 03-50444.

382 F.3d 927 (2004)

UNITED STATES of America, Plaintiff-Appellee, v. Juan Benito CASTRO, aka Tony R. Lanier, Defendant-Appellant.

United States Court of Appeals, Ninth Circuit.

Memorandum Disposition Withdrawn August 27, 2004.

Filed August 27, 2004.

Submitted August 3, 2004.

Attorney(s) appearing for the Case

H. Dean Steward, San Clemente, CA, for the defendant-appellant.

Debra W. Yang, Steven D. Clymer, and Beverly Reid O'Connell, Los Angeles, CA, for the plaintiff-appellee.

Before REINHARDT, KOZINSKI, and CLIFTON, Circuit Judges.

PER CURIAM:

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...

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