United States v. Francisco Lucas, Jr.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 22-50064

Plaintiff-Appellee, D.C. No. 8:21-cr-00017- v. JVS-

FRANCISCO LUCAS, Jr., AKA Choko, AKA Francisco Lucas, OPINION

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California James V. Selna, District Judge, Presiding

Argued and Submitted En Banc January 23, 2024 Pasadena, California

Filed May 2, 2024

Before: Mary H. Murguia, Chief Judge, and Kim McLane Wardlaw, Johnnie B. Rawlinson, Consuelo M. Callahan, Sandra S. Ikuta, Morgan Christen, Mark J. Bennett, Bridget S. Bade, Kenneth K. Lee, Lucy H. Koh and Holly A. Thomas, Circuit Judges.

Opinion by Chief Judge Murguia SUMMARY*

Criminal Law

Vacating a sentence and remanding, the en banc court held that clear and convincing evidence is not required for factual findings under the advisory Sentencing Guidelines, even when potentially large enhancements are at stake; fact- finding by a preponderance of the evidence is sufficient to satisfy due process at sentencing.…