UNITED STATES of America, Plaintiff-Appellee, v. Husam SAMARAH, aka Husam Abdulkarim, aka Ken, Defendant-Appellant, 203 F. App'x 156

MEMORANDUM Husam Samarah (Appellant) appeals his conviction for carjacking under 18 U.S.C. § 2119. We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part and remand under United States v. Ameline, 409 F.3d 1073 (9th Cir.2005) (en banc). When the district court considered Appellant’s carjacking conduct in sentencing him for bank fraud, Appellant was not placed in jeopardy of being punished for carjacking.

The Supreme Court has clearly stated that a defendant is not punished for double jeopardy purposes when conduct is considered for sentence enhancement; rather, a defendant is punished only for the offense of conviction. See Witte v. United States, 515 U.S. 389, 402-03, 115 S.Ct. 2199, 132 L.Ed.2d 351 (1995) (“To the extent that the Guidelines aggravate punishment for related conduct outside the elements of the crime ..., the offender is still punished only for the fact that the present offense was carried out in a manner that warrants increased punishment, not for a different offense.... ”).

We have applied the rule of Witte even where a defendant was charged with and acquitted of the “different offense” before sentencing in the “present offense.” United States v. Gamez, 301 F.3d 1138, 1148 (9th Cir.2002). We see no reason not to do so here. Witte survives Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Booker, 543 U.S. at 240, 125 S.Ct. 738 (concluding that Witte is not inconsistent with its holding); Gamez, 301 F.3d at 1149-50 (applying Witte post-Apprendi).

The doctrine of res judicata, which bars retrial of the same cause of action, does not apply here. See United States v. Stearns, 707 F.2d 391, 394 (9th Cir.1983). Collateral estoppel, which bars relitigation of matters “actually litigated and decided in an earlier prosecution,” does not apply here because the elements of carjacking were not decided in the bank fraud case. See id.

Appellant’s challenge to the sufficiency of the evidence requires us to determine if “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Carranza, 289 F.3d 634, 641-42 (9th Cir. 2002) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

We conclude that a rational factfinder could find the evidence that Appellant, along with two other individuals, kicked and hit the victim with enough force to knock him to the ground and render him dazed was sufficient to establish beyond a reasonable doubt Appellant’s intent to cause “serious bodily harm” under 18 U.S.C. § 2119. As the government concedes, the record in this case requires a limited remand under Ameline. See 409 F.3d at 1078-79. We reject Appellant’s motion requesting relief pursuant to United States v. Gonzales-Lopez, 126 S.Ct. 2560 (2006), which does not apply here. See id. at 2561.

Finally, we fail to find merit in Appellant’s filing of July 5, 2006. AFFIRMED IN PART, AND REMANDED. 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.