                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 27 2011

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 10-30229

               Plaintiff - Appellee,             D.C. No. 4:09-cr-00075-SEH

  v.
                                                 MEMORANDUM *
ERROL ARAM MANN,

               Defendant - Appellant.



                    Appeal from the United States District Court
                            for the District of Montana
                     Sam E. Haddon, District Judge, Presiding

                              Submitted June 15, 2011 **

Before:        CANBY, O’SCANNLAIN, and FISHER, Circuit Judges.

       Errol Aram Mann appeals from the 235-month sentence imposed following

his guilty-plea conviction for being a felon and armed career criminal in possession

of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(e). We have jurisdiction

under 28 U.S.C. § 1291, and we affirm.

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Mann contends that the district court violated his Sixth Amendment rights

by basing his sentence on a fact that he did not admit and that was not found by a

jury beyond a reasonable doubt, in violation of Apprendi v. New Jersey, 530 U.S.

466 (2000). Mann’s Sixth Amendment rights were not violated because his

sentence was not increased beyond the prescribed statutory maximum. See United

States v. Rosas, 615 F.3d 1058, 1065 (9th Cir. 2010) (“In order to bring an

Apprendi claim, the defendant must show that the actual sentence imposed [is]

longer than the maximum sentence for the crime of conviction.”) (internal

quotation marks omitted); United States v. Bland, 961 F.2d 123, 128 (9th Cir.

1992) (holding that the district court did not err in determining that section 924(e)

authorized a sentence of life imprisonment without possibility of parole).

      Mann also contends that the district court erred when it calculated his

guidelines range using an offense level of 34, pursuant to U.S.S.G.

§ 4B1.4(b)(3)(A), because there was insufficient evidence to show that he

possessed the firearm in connection with the burglary. The record indicates that

the district court did not err when it determined, by a preponderance of the

evidence, that Mann possessed the firearm in connection with the burglary. See

U.S.S.G. § 4B1.4(b)(3)(A); United States v. Dare, 425 F.3d 634, 642 (9th Cir.

2005) (“As a general rule, the preponderance of the evidence standard is the


                                           2                                    10-30229
appropriate standard for factual findings used for sentencing.”); United States v.

Armstead, 552 F.3d 769, 777-78 (9th Cir. 2008) (holding that a 2-level

enhancement did not have an extremely disproportionate effect on the sentence).

      AFFIRMED.




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