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Preponderance of Evidence Standard Applies to Hefty Enhancements—Ninth Circuit
Overruling Its Own Precedent, En Banc Court Holds That Clear and Convincing Evidence Is No Longer Required
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals, sitting en banc, yesterday overruled its own precedent and held that clear and convincing evidence is not required for factual findings in support of hefty enhancements under the now-advisory federal sentencing guidelines and that a preponderance of the evidence standard is appropriate.
The en banc court remanded for resentencing a felon-with-a-firearm case in which the weapon was never recovered and the enhancement at issue applied only if the firearm is capable of holding a large capacity magazine.
Chief Judge Mary Murguia wrote the opinion vacating the 57-month sentence imposed by Senior District Court Judge James V. Selna of the Central District of California. Circuit Judges Kim McLane Wardlaw, Johnnie B. Rawlinson, Consuelo M. Callahan, Sandra S. Ikuta, Morgan Christen, Mark J. Bennett, Bridget S. Bade, Kenneth K. Lee, Lucy K. Koh and Holly A. Thomas joined in the opinion.
Appealing his conviction was Francisco Lucas Jr. who, having been previously convicted of two felonies in California, was on probation in late 2020 when Fullerton Police Department detectives Michael Green and Anthony Valle searched his cellphone and found photographs and videos depicting Lucas in his home with a firearm and a longer-than-usual magazine.
Initial Response
Murguia noted that when the federal sentencing guidelines became law in 1987, sentencing within the guidelines range was mandatory. In response to the new sentencing regime, the Ninth Circuit held that a defendant had a due process right to ensure the reliability of facts underlying sentencing factors be proven according to a specified standard of proof.
She explained that for most enhancements, the court identified preponderance of the evidence as the appropriate standard, but “we followed the lead of the Third Circuit” in requiring a sentencing factor which has an “extreme effect” on the sentence to be proven by clear and convincing evidence.
However, she said “[s]entencing law underwent a sea change” when the 2005 U.S. Supreme Court case of United States v. Booker rendered the guidelines advisory rather than mandatory. After the Booker case, the court recommitted to the clear and convincing evidence standard in the 2006 Ninth Circuit case of United States v. Staten.
Circuit Judge Marsha Berzon, now on senior status, wrote the opinion in Staten, holding that Booker did not expressly overturn the heightened standard of proof and so the clear and convincing standard remained for large enhancements.
Murguia noted that several circuits began eliminating the clear and convincing standard after Booker due to the now-advisory nature of the sentencing guidelines. She said:
“[U]ntil now our court has yet to meaningfully grapple with the growing tension between the clear and convincing standard and what due process requires of sentencing under the now-advisory Guidelines.”
New Standard
Taking on the task of resolving the tension, Murguia wrote:
“The government argues that the preponderance of the evidence standard is sufficient to satisfy due process for fact finding under the advisory Guidelines, even when a fact has an extremely disproportionate effect on the sentence. We agree.”
Noting that this approach is consistent with the standard in “nearly every other circuit,” she said:
“[T]he overwhelming consensus here makes plain that there is no longer any sound legal foundation for requiring a heightened standard of proof….
“Considering this landscape, our continued adherence to the heightened standard of proof makes little sense. We join our sister circuits in holding that clear and convincing evidence is not required for factual findings under the Guidelines, even when potentially large enhancements are at stake; fact-finding by a preponderance of the evidence is sufficient to satisfy due process at sentencing. We therefore overrule Staten…and its progeny.”
A remand was ordered for a resentencing.
The case is United States v. Lucas, 22-50064.
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