Nye

MEMORANDUM *

Brian Adams Nye appeals his 51-month sentence for making false statements to the IRS, mail fraud, wire fraud, and witness tampering. The parties are familiar with the facts of the case and we refer to them only as necessary in this disposition. For the reasons stated below, we affirm Nye’s sentence.

1. Standard of Proof at Sentencing

The district court found, by a preponderance of the evidence, that Nye had caused $1,041,390.60 in losses. This resulted in an 11-point increase in his offense level. U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 2Fl.l(b)(l)(L) (2000). Nye asserts on appeal, as he did below, that the district court should have used the clear and convincing standard of proof in determining the amount of loss.

Generally, the preponderance standard is sufficient to satisfy due process requirements at sentencing. United States v. Johansson, 249 F.3d 848, 853 (9th Cir.2001); United States v. Mezas de Jesus, 217 F.3d 638, 642 (9th Cir.2000). Where a factual determination has “an extremely disproportionate effect on the sentence relative to the offense of conviction,” however, it may become necessary to use the clear and convincing standard of proof.…