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Name: U.S. v. Munoz
Court: US Court of Appeals
District 9 Cir
Opinion Date: 12/06/2000
Subsequent History: None

Generally, the factual findings underlying a conduct enhancement must be supported by a preponderance of the evidence. However, the Ninth Circuit, in an en banc opinion, has held that due process requires the district court to find a sentencing factor that has an extremely disproportionate effect on the sentence by clear and convincing evidence, rather than by a preponderance of the evidence. (United States v. Restrepo (9th Cir. 1991) 946 F.2d 654, 659-660.) Here the upward adjustments, from a five-level to a fourteen-level upward adjustment, which changed the sentence range from 12-18 months to 41-51 months, were sufficiently disproportionate to justify a remand to determine whether the evidence was clear and convincing that Munoz and McGregor knowingly and intentionally engaged in all of the uncharged conduct upon which the upward adjustments were based. [Editor’s note: Restrepo II was relied upon to to support the same holding in United States v. Hopper (9th Cir. 1999) 177 F.3d 824, 833, in which the United States Supreme Court refused to review (cert. denied McKendrick v. United States (2000) — U.S. —, 145 L.Ed.2d 1086). However, Restreppo II relied on the United States Supreme Court’s opinion in McMillan v. Pennsylvania (1986) 477 U.S. 79, in which the court concluded that the preponderance standard for proving an enhancement for “visible possession of a firearm” satisfied due process considerations, and that it could see nothing in Pennsylvania’s sentencing scheme that would warrant constitutionalizing the burdens of proof at sentencing. The high court noted only two cases in which it had “constitutionalized” the burden of proof: Addington v. Texas (1979) 441 U.S. 418, and Santosky v. Kramer (1982) 455 U.S. 745, which dealt respectively with involuntary civil commitments, and the involuntary termination of parental rights. The Ninth Circuit’s reliance on McMillian in Restrepo II may therefore be precarious. This may, nonetheless, provide authority for making a similar argument if there are any potential applications for this argument under California law.]