Taylor

MEMORANDUM *

Defendant Norman Taylor appeals the district court’s imposition of a 140-month *16 sentence following Taylor’s unconditional plea of guilty to one count of distribution of cocaine. Because the parties are familiar with the factual and procedural history of this case, we will not recount it here.

I

In this case, the district court determined drug quantity by employing the “preponderance of the evidence” standard. The district court erred in doing so. When a sentencing factor has an extremely disproportionate effect on the sentence, the government must prove the sentencing enhancement by clear and convincing evidence. United States v. Jordan, 256 F.3d 922, 930 (9th Cir.2001); United States v. Romero-Rendon, 220 F.3d 1159, 1160 (9th Cir.2000). Viewing the evidence in the light most lenient to Taylor, the government had proof beyond a reasonable doubt of 2 grams of cocaine base-an amount that would have resulted in a base offense level of 20. This base level results in a sentencing range of 41-51 months. In contrast, the uncorroborated hearsay evidence of the sole testifying witness to Taylor’s drug trafficking exposed Taylor to a base offense level of 32, and a…

concurring in part and dissenting in part.

I concur in Parts III and IV but in my view, the district court did not err in calculating drug quantity.

First of all, Taylor does not dispute that the standard of proof is preponderance of the evidence. This is for good reason. The calculation of quantity here involved charged conduct; it is not part of a sentencing enhancement, or uncharged relevant conduct, that may call for proof by a clear and convincing standard. That distinguishes each of the cases upon which the majority relies. United States v. Jordan, 256 F.3d 922 (9th Cir.2001) (enhancement for firearm possession and abduction to escape); United States v. Romero-Ren- *19 don, 220 F.3d 1159 (enhancement based on prior aggravated felony); United States v. Munoz, 233 F.3d 1117 (9th Cir.2000) (uncharged conduct); United States v. Mexas de Jesus, 217 F.3d 638 (9th Cir.2000) (same). Even so, Taylor argues that instead of a quantity that put him at base level 32, he should have had a base level of 28. With a three-level decrease for acceptance of responsibility, plus two for use of a firearm, that would have given him an offense level of 27. At criminal history category III,…