a sentencing enhancement should not become “ ‘the tail which wags the dog of the substantive offense’ ” — is also distinguishable. Rebmann II, 321 F.3d at 544 (quoting McMillan, 477 U.S. at 88, 106 S.Ct. 2411). Since the Supreme Court decided McMillan, it has made clear that a due process violation only occurs when the court makes a factual finding by a preponderance of the evidence to “authorize a sentence in excess of that otherwise allowed for the underlying offense.” Blakely v. Washington, 542 U.S. 296, 304, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) (discussing McMillan). As indicated, the government is not seeking to use the departure to increase Defendant’s sentence beyond the statutory maximum of 40 years’ imprisonment. Cf. United States v. Mix, 457 F.3d 906, 914 (9th Cir.2006) (<HOLDING>). The Eighth Cir- euit Court of Appeals has
recognizing the futility of remanding a sentence for the application of advisory guidelines where the district court had previously departed upward holding that even though the offense was not of a sexual nature requiring the defendant to register as a sex offender following his conviction for false imprisonment of a minor was rationally related to the government interest in protecting the public and did not violate the defendants right to due process or equal protection under the law recognizing that this court and the united states supreme court have embraced the notion that so long as the sentence imposed is within the maximum limit set by the legislature an appellate court is without power to review the sentence holding that the district court did not violate the defendants right to due process when it departed upward to life imprisonment pursuant to  5k221 because his sentence was within the maximum set forth in the united states code for the offense of conviction holding that prosecution of defendant in the united states for hostage taking based on acts committed outside the united states did not violate due process