United States v. Ching Tang Lo

MEMORANDUM **

Ching Tang Lo appeals the 140-month sentence he received from the district court following a limited remand pursuant to United States v. Ameline, 409 F.3d 1073 (9th Cir.2005) (en banc).

We have jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291 . “We review a district court’s interpretations of the federal Sentencing Guidelines de novo, its factual determinations for clear error, and its application of the Sentencing Guidelines to the facts as it has found them for abuse of discretion.” United States v. Rising Sun, 522 F.3d 989, 993 (9th Cir.2008).

Lo argues that the district court erroneously calculated his Base Offense Level at 38 and that the government should have been required to show by clear and convincing evidence that Lo intended or reasonably believed that the ma huang in all of the barrels counted in his sentence were to be used to make controlled substances. “We have applied the preponderance of the evidence standard where an increase in sentence is based on the extent of a conspiracy as opposed to uncharged conduct.” United States v. Melchor-Zaragoza, 351 F.3d 925, 929 (9th Cir.2003) (emphasis in original). The preponderance of the…