Huihui

MEMORANDUM **

A jury convicted Hannibal Huihui on one count of stealing from the United States mail in violation of 18 U.S.C. § 1708 . He appeals from his sentence of 25 months. We affirm.

Huihui argues that the inclusion of the value of the missing food stamp coupons in the loss calculation had a disproportionate effect on his sentence, and therefore the district court should have required that there be clear and convincing evidence that Huihui stole the coupons. The inclusion of the coupon theft as relevant conduct increased Huihui’s offense level from 6 to 12, and increased his Guidelines sentencing range from 6-12 months to 21-27 months. Huihui received a 25-month sentence.

The inclusion of the food stamp theft in the loss calculation increased the number of offense levels by six, and Huihui’s enhanced sentence is more than double the maximum length authorized without the enhancement. These are two factors that justify requiring clear and convincing evidence of the conduct underlying the sentence enhancement. See United States v. Jordan, 256 F.3d 922, 928 (9th Cir.2001).

Nevertheless, Huihui never argued for the application of the clear and convincing standard, and we…

concurring in part, dissenting in part.

I agree with the majority that the district court committed plain error by sentencing Huihui for relevant conduct based on a preponderance of evidence rather than clear and convincing evidence. I part with the majority’s determination, however, that no reversible error occurred because “it appears that the enhancement could have been proven by clear and convincing evidence.” In my view, the majority’s decision to weigh the evidence conflicts with an important and fundamental responsibility of the district court. In pri- or decisions, we have remanded for the district court “to determine whether the evidence is clear and convincing....” See, e.g., United States v. Jordan, 256 F.3d 922, 933 (9th Cir.2001). We explained that “we are not in a position to weigh conflicting evidence, which is an important responsibility of the district court....” Id. Similarly, in United States v. Munoz, 233 F.3d 1117, 1127 (9th Cir.2000), we remanded to permit the district court to apply the correct evidentiary standard, noting that such *222 a determination “is within the province of the district court to decide.”

Moreover, the majority reaches its conclusion…