What is the test for a defendant to be found guilty of a charge of reckless endangerment in a federal district court?

As an initial point, it is well-established law that a district court may consider acquitted conduct when determining a sentence. See United States v. Mercado, 474 F.3d 654, 657 (9th Cir. 2007). If the court's reliance on acquitted conduct would have a "disproportionate impact" on a sentence, a defendant's

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criminal liability for acquitted conduct must be supported by "clear and convincing evidence." See United States v. Staten, 466 F.3d 708, 720 (9th Cir. 2006). Otherwise, it must be established by a preponderance of the evidence. See Mercado, 474 F.3d at 657. Here, the district court applied the heightened "clear and convincing evidence" standard, a decision we assume to be correct.