United States v. Jack David Piper, Jr.

Appellee pled guilty to one count of possessing a controlled substance with intent to distribute. Relying on this court’s decision in United States v. Restrepo, 883 F.2d 781 (9th Cir.1989) (Restrepo I), the district court refused to consider conduct not charged in determining appellee’s sentence, both as to the offense level and as to the determination of appellee’s acceptance of responsibility. The government appealed.

After the government’s first brief was filed, but before appellee’s brief, the opinion in Restrepo I was withdrawn and reissued as United States v. Restrepo, 903 F.2d 648 (9th Cir.1990), reh. granted en banc, 912 F.2d 1568 {Restrepo II). The new incarnation of Restrepo makes clear that conduct other than that of which a defendant was convicted may be considered in calculating the offense level of a distribution charge, if it is part of the same course of conduct as the crime of conviction. Uncharged conduct must be proved by evidence of a sufficient weight “to convince a reasonable person of the probable existence of the enhancing factor.” Res-trepo II, at 654-55.

Appellee urges us to adopt the more stringent clear and convincing standard of proof for conduct…