Holmes

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). 1 The district court adjusted Holmes’s base offense level to 38 to account for additional drug transactions which it determined…