What is the burden of proof for a factual finding underlying a sentencing enhancement?

The burden of proof for a factual finding underlying a sentencing enhancement depends on the magnitude of the findings effect on the sentencing range. As a general rule, a preponderance of the evidence standard applies, but the Government must meet a higher standardproof by "clear and convincing evidence"in cases where there is "an extremely disproportionate impact on the sentence." United States v. Jordan , 256 F.3d 922, 930 (9th Cir. 2001).

We look to the totality of the circumstances to see if that heightened standard applies. United States v. Pike , 473 F.3d 1053, 1057 (9th Cir. 2007) (citing Jordan , 256 F.3d at 928 ). In United States v. Valensia , we surveyed past cases and extracted several factors that may guide this inquiry. 222 F.3d 1173, 1182 (9th Cir. 2000), vacated and remanded on other grounds , 532 U.S. 901, 121 S.Ct. 1222, 149 L.Ed.2d 133 (2001). We summarized these factors in Jordan :

Jordan , 256 F.3d at 928 (quotation marks omitted). Both Jordan and Valensia disregarded the first four factors, however, and focused entirely on how enhancements increased both the offense level and the length of the recommended Guidelines range. Id. at 929 ; Valensia , 222 F.3d at 1182. More recent cases have also relied on only these last two factors. See, e.g. , United States v. Gonzalez , 492 F.3d 1031, 103940 (9th Cir. 2007) (explaining that "[a]lthough the first four factors are either not particularly relevant or do not weigh in favor of a heightened standard, the last two factors are significant" and that "[w]e have previously invoked the clear and convincing evidence standard where only the two final factors favor its application").⁶

[940 F.3d 480]

In United States v. Hopper , 177 F.3d 824 (9th Cir. 1999), the first case to apply the clear and convincing standard in this sentencing enhancement context, we held that a 7 level adjustment to a defendants offense level, which increased his sentencing range from 24 to 30 months to 63 to 78 months, satisfied the "extremely disproportionate impact test" and required clear and convincing evidence of the adjustments predicate facts. Id. at 833. Later, in Jordan , we held that the higher standard applied because the contested enhancements increased the offense level by 9 and more than doubled the sentencing range, raising it from 70 to 87 months to 151 to 188 months. 256 F.3d at 929.