United States v. Holmes
United States v. Holmes
Opinion of the Court
MEMORANDUM
Ronald Holmes (“Holmes”) appeals the 40-year sentence imposed by the district court following his guilty plea to a one-count indictment charging conspiracy to manufacture and distribute methamphetamine (“meth”) in violation of 21 U.S.C. §§ 841(a)(1) and 846. Holmes alleges that the district court denied him due process by using the preponderance of the evidence standard to determine sentencing enhancements which had an extremely disproportionate effect on his sentence. Reviewing the constitutionality of Holmes’s sentence de novo, United States v. Johansson, 249 F.3d 848, 853 (9th Cir. 2001), we hold that the district court was required to determine the enhancements under the clear and convincing evidence standard. Accordingly, we vacate his sentence and remand for resentencing.
I Holmes’s Base Offense Level
Holmes’s admission to conspiring to sell 439 grams of “ice,” a purified form of meth, triggered an offense level of 34 under the Sentencing Guidelines. United States Sentencing Guidelines Manual (“U.S.S.G.”) § 2Dl.l(c)(3) (Nov. 1998).
II Eight-Level Enhancement To Holmes’s Base Offense Level
Apart from accounting for Holmes’s additional drug activity, the district court applied three sentencing enhancements— for weapons possession, organizing role in the charged offense, and obstruction of justice—which boosted Holmes’s sentencing level by eight levels. U.S.S.G. §§ 2Dl.l(b)(l), 3Bl.l(a), 3C1.1. Where, as here, a defendant challenges multiple sentencing enhancements, we consider their impact in the aggregate rather than individually. United States v. Jordan, 256 F.3d 922, 926 (9th Cir. 2001). Without these enhancements, Holmes faced a sentencing range of 155 to 235 months—reflecting a criminal history Category of I and a base offense level of 36.
Where a defendant has been subjected to at least a seven-level enhancement which more than doubled the initially applicable guideline range, this Court has consistently required determination of those enhancements by clear and convincing evidence. See Jordan, 256 F.3d at 929; United States v. Munoz, 233 F.3d 1117, 1127 (9th Cir. 2000); United States v. Mezas de Jesus, 217 F.3d 638, 643 (9th Cir. 2000); United States v. Hopper, 177 F.3d 824, 833 (9th Cir. 1999). Because Holmes satisfies these criteria, we hold that the district court erred in applying a preponderance of the evidence standard at sentencing.
Ill Plain Error
Holmes did not object at sentencing to the district court’s use of the preponderance standard in determining the three enhancements. Thus, we review the district court’s use of this standard for plain error. Fed. R.Crim. Pro. 52(b); Jordan, 256 F.3d at 926 n. 2, 929. We only correct an error not objected to at trial where the error (1) is plain, (2) affects substantial rights, and (3) “seriously affects the fairness, integrity or public reputation of judicial proceedings.” Jordan, 256 F.3d at 926. To conclude that application of the wrong standard of proof affected Holmes’s substantial rights, the error “must have been prejudicial: It must have affected the outcome of the proceedings.” United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). We have observed that “where ... the district court applied the wrong standard of proof, we must necessarily conclude that the fairness and integrity of the proceeding is threatened.” Jordan, 256 F.3d at 932. Here, the district court plainly erred by
Further, we believe this error affected Holmes’s substantial rights to due process because as we view the record, it is far from clear that the enhancements are supported by clear and convincing evidence. The enhancements for organizing role and obstruction of justice, for example, were based largely on trial testimony from co-conspirators who received favorable consideration from the government in return for their testimony.
Our considerable doubts about whether the evidence supported the enhancements under the clear and convincing standard lead us to believe that the fairness and integrity of Holmes’s sentence may well have been compromised. See Jordan, 256 F.3d at 931. Accordingly, we exercise our discretion to recognize the error.
Because Judge Moreno is no longer on the federal bench, the district court in charge of resentencing shall conduct a new evidentiary hearing to consider which enhancements, if any, are supported by clear and convincing evidence.
VACATED and REMANDED for re-sentencing.
■phis disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.
. All Guidelines references are to the November 1, 1998 manual in force at the time of Holmes's sentencing.
. Holmes’s base offense level of 38 minus two levels for acceptance of responsibility.
. The enhancement for weapons possession during the offense, however, was based on physical, rather than testimonial, evidence. This enhancement was supported by clear and convincing evidence and should not be reconsidered on remand by the district court.
. This case from 2000 involved a different Holmes—Charles Holmes, aka Slim—than the one presently before this Court.
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff—Appellee v. Ronald HOLMES, Defendant—Appellant
- Status
- Published