United States v. Augustino Fernandez-Vidana

857 F.2d 673 UNITED STATES of America, Plaintiff-Appellee, v. Augustino FERNANDEZ-VIDANA, Defendant-Appellant. No. 87-3027. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 3, 1988. Decided Sept. 21, 1988. Stephen R. Sady, Office of Federal Public Defender, Portland, Or., for defendant-appellant. Frank Noonan, Office of the U.S. Atty., Portland, Or., for plaintiff-appellee. Appeal from the United States District Court for the District of Oregon. Before WALLACE and REINHARDT, Circuit Judges, and HARDY, District Judge. * HARDY, District Judge: Defendant Augustino Fernandez-Vidana pleaded guilty to one of two counts charging him with distribution of cocaine. He objected to a statement in the presentence report that he had participated in the distribution charged in the other count of the indictment. He appeals the district court's finding that he had participated in that distribution. We affirm. BACKGROUND The two-count indictment charged Vidana and his co-defendant, Jesus Ceja-Ochoa, with distributing cocaine on or about September 23 (the transaction actually occurred on September 22) and on September 27, 1986. Vidana pleaded guilty to the September 27…

Defendant Augustino Fernandez-Vidana pleaded guilty to one of two counts charging him with distribution of cocaine. He objected to a statement in the presentence report that he had participated in the distribution charged in the other count of the indictment. He appeals the district court’s finding that he had participated in that distribution. We affirm.

BACKGROUND

The two-count indictment charged Vida-na and his co-defendant, Jesus Ceja-Ochoa, with distributing cocaine on or about September 23 (the transaction actually oc *674 curred on September 22) and on September 27, 1986.

Vidana pleaded guilty to the September 27 distribution. However, he objected to a statement in the presentence report that he also participated in the September 22 distribution. A hearing was held pursuant to United States v. Petitto, 767 F.2d 607 (9th Cir.1985). James Robert Miller, a police officer, testified as follows: On September 21 an informant reported that he had talked to Ochoa on September 18 about Ochoa’s selling some cocaine to him and that they were to meet on September 22 to consummate the transaction. At that time the officer was not aware that Vidana was involved. On September 22 the…

concurring:

I write separately only to add a word regarding the standard of proof to be applied in sentencing proceedings. While I believe that the preponderance of the evidence standard is appropriate for determining the facts in this instance, that is not necessarily the rule under all circumstances. For example, a higher standard may well be warranted in capital cases. As Judge Oakes said in a similar case when approving the use of the preponderance of the evidence test:

United States v. Lee, 818 F.2d 1052, 1058 (2nd Cir.1987) (Oakes, J., concurring).