United States v. Delfino Lomeli Gonzalez

This appeal arises out of the district court’s decision to sentence Delfino Lomeli Gonzalez to imprisonment rather than special probation, in the face of Gonzalez’s claim that a non-probationary sentence would have a potential negative impact on his immigration status. The sole issue Gonzalez raises on appeal is whether the district court plainly erred by applying the “preponderance of the evidence” rather than the “clear and convincing” standard when it denied his request for special probation under 18 U.S.C. § 3607 . We have jurisdiction to consider whether the sentence “was imposed in violation of law,” 18 U.S.C. § 3742 (a), and we affirm because the district court employed the correct evi-dentiary standard.

BACKGROUND,

After Gonzalez’s trial for possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841 (a)(1) and 18 U.S.C. § 2 , a jury convicted him of the lesser included offense of possession of methamphetamine in violation of 21 U.S.C. § 844 . The jury failed to reach a unanimous verdict on the charge of possession with intent to distribute.

It is undisputed that Gonzalez purchased at least fifty-two grams (over one-and-a-half ounces) of pure…