
    UNITED STATES of America, Plaintiff-Appellee, v. Philip ARCAND, Defendant-Appellant.
    No. 03-50586.
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted July 12, 2005.
    Decided July 22, 2005.
    Ronald L. Cheng, Esq., Ellyn M. Lindsay, Esq., Office of the U.S. Attorney, Los Angeles, CA, for Plaintiff-Appellee.
    Alissa Sawano Peterson, Irvine, CA, for Defendant-Appellant.
    Before: REINHARDT, KOZINSKI and BERZON, Circuit Judges.
   MEMORANDUM

1. The allegation that the fraud targeted elderly victims was not “essential,” see United States v. Miller, 471 U.S. 130, 145, 105 S.Ct. 1811, 85 L.Ed.2d 99 (1985), to the underlying charges of mail fraud by means of telemarketing. See 18 U.S.C. §§ 1341, 2326. The government was required to prove the same underlying conduct, even without the elderly victims allegation. See United States v. Sua, 307 F.3d 1150, 1155 (9th Cir.2002). The indictment contained sufficient information to allow Arcand to anticipate what evidence would be presented at trial. See United States v. Antonakeas, 255 F.3d 714, 722 (9th Cir.2001).

2. Arcand argues that his sentence was improperly enhanced based on facts not found beyond a reasonable doubt. See United States v. Booker, — U.S. -, -, 125 S.Ct. 738, 748, 160 L.Ed.2d 621 (2005); Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Arcand preserved this Sixth Amendment objection by raising it below. Accordingly, pursuant to Booker, 125 S.Ct. at 769, we vacate defendant’s sentence and remand for resentencing.

CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED FOR RESENTENCING. 
      
       This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
     