United States v. Dario Restrepo

946 F.2d 654, 91 Cal. Daily Op. Serv. 8052, 91 Daily Journal DAR 12276, 1991 U.S. App. LEXIS 22996, 1991 WL 195100

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 4, 1991
• Docket: 88-3207
• Status: Published

Opinions

WIGGINS, Circuit Judge:

Dario Restrepo appeals his forty-six month prison sentence imposed after he was convicted of two counts of distribution of cocaine. A panel of this court issued an opinion on May 8, 1990. United States v. Restrepo, 903 F.2d 648 (9th Cir.1990). We granted Restrepo’s petition to rehear the case en banc for the limited purpose of considering whether the preponderance of the evidence standard of proof for factors enhancing a sentence under Sentencing Guideline § lB1.3(a)(2) satisfies due process. We conclude that it does, as a general rule. The facts, and parts one and three, of the earlier opinion remain unchanged and will not be repeated here. Part two of the earlier opinion is withdrawn and replaced with the following:

STANDARD OF PROOF

It is undisputed that in pre-Guidelines practice, a sentencing judge was free to consider or to decline to consider any and all information about a defendant’s background and relevant conduct without a requirement that the information meet any particular standard of proof. See McMillan v. Pennsylvania, 477 U.S. 79, 91, 106 S.Ct. 2411, 2418, 91 L.Ed.2d 67 (1986). Restrepo argues that because the Sentencing Guidelines severely reduce the judge’s discretion and mandate the sentencing effect of uncharged crimes, due process requires something more than a preponderance of the evidence standard of proof for uncharged crimes under the Guidelines.

In commissioning and approving the Guidelines, Congress offered no guidance regarding a standard of proof for sentencing factors. Also, the Sentencing Commission expressly declined to decide the question presented in this case: “Among the legal issues that may have to be resolved are: .... What is the weight of the burden of persuasion (i.e., is it sufficient to prove the asserted factor by a preponderance of the evidence or is a higher degree of certainty required)?” Supplementary Report on the Initial Sentencing Guidelines and Policy Statements Al n. 79 (1987). Consequently, we are left to determine the appropriate standard of proof for uncharged conduct used at sentencing based on relevant case law and due process principles.

The Supreme Court has not considered the precise question whether the preponderance of the evidence standard of proof for sentencing factors under the Guidelines satisfies due process. Every circuit that has considered the question has answered affirmatively, including a panel in an earlier case in this circuit. See, e.g., United States v. Wilson, 900 F.2d 1350, 1353-54 (9th Cir.1990); United States v. Frederick, 897 F.2d 490, 492-93 (10th Cir.), cert. denied, — U.S. -, 111 S.Ct. 171, 112 L.Ed.2d 135 (1990); United States v. Alston, 895 F.2d 1362, 1372-73 (11th Cir.1990); United States v. Wright, 873 F.2d 437, 441-42 (1st Cir.1989); United States v. Guerra, 888 F.2d 247, 251 (2d Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 1833, 108 L.Ed.2d 961 (1990); United States v. McDowell, 888 F.2d 285, 290-91 (3d Cir.1989); United States v. Urrego-Linares, 879 F.2d 1234, 1237-38 (4th Cir.), cert. denied, 493 U.S. 943, 110 S.Ct. 346, 107 L.Ed.2d 334 (1989); United States v. Silverman, 889 F.2d 1531, 1535 (6th Cir.1989); United States v. White, 888 F.2d 490, 499 (7th Cir.1989); United States v. Gooden, 892 F.2d 725, 727-28 (8th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 2594, 110 L.Ed.2d 274 (1990).¹

Although the Supreme Court has not addressed the precise question, an analogous pre-Guidelines case from the Court supports the currently unanimous conclusion by the Courts of Appeal that the preponderance standard generally satisfies due process under the Guidelines. In McMillan, 477 U.S. 79, 106 S.Ct. 2411, the Court considered whether, when a state legislature eliminates judicial discretion and sets a predetermined effect at sentencing for the visible possession of a handgun, due process requires something more than a preponderance of the evidence to establish the possession. The Court first determined that Pennsylvania did not transgress constitutional due process limits when it defined the visible possession of a handgun as a sentencing factor rather than as an element of a crime. Id. at 84-91, 106 S.Ct. at 2415-18. The Court reached this conclusión because the use of handgun possession as a sentencing factor does not (1) negate the presumption of innocence, or relieve the prosecution of the burden of proving guilt of the underlying crime, id. at 87, 106 S.Ct. at 2416, or (2) alter the maximum penalty available for the crime committed, or (3) create a separate offense calling for a separate penalty, id. at 88-90, 106 S.Ct. at 2417-18.

After the Court established that the visible possession of a handgun can be properly classified as a sentencing factor, it addressed the question whether due process might nevertheless require that the factor be proven by at least clear and convincing evidence at sentencing. The Court answered resoundingly in the negative:

We see nothing in Pennsylvania’s scheme that would warrant constitutionalizing burdens of proof at sentencing.

... We have some difficulty fathoming why the due process calculus would change simply because the legislature has seen fit to provide sentencing courts with additional guidance.

Id. at 92, 106 S.Ct. at 2419 (footnote omitted). The result is not based on any peculiarities of the sentencing factor at issue in McMillan, but is based on the bifurcation of the criminal justice system into a conviction stage and a sentencing stage, with meaningful distinctions in the purposes, interests, and burdens involved in each stage. It was important to the Court that:

criminal sentencing takes place only after a defendant has been adjudged guilty beyond a reasonable doubt. Once the reasonable-doubt standard has been applied to obtain a valid conviction, the criminal defendant has been constitutionally deprived of his liberty to the extent that the State may confine him.

Id. at 92 n. 8, 106 S.Ct. at 2419 n. 8 (internal citation omitted). The Court emphasized that even a clear and convincing standard of proof at sentencing, rather than a preponderance standard, “would significantly alter criminal sentencing.” Id.

McMillan holds that the preponderance standard for fact-finding generally is adequate to protect any interests a properly convicted defendant retains at sentencing. We believe that McMillan controls this case. The Guidelines do not differ from the Pennsylvania statute in any manner that significantly affects the due process conclusion in McMillan.2 As did the Pennsylvania statute,³ the Sentencing Guidelines have taken traditional sentencing factors and given them a predetermined effect. Like the Pennsylvania statute, the Guidelines, both as a general matter and specifically in the section at issue here (§ lB1.3(a)(2)), do not (1) negate the presumption of innocence or the prosecutor’s burden of proving guilt with regard to the underlying crime in the conviction stage of the criminal justice process, or (2) alter the maximum penalty available for the crime committed,⁴ or (3) create new offenses requiring separate punishment.

Obviously, the Guidelines herald an historic shift in sentencing procedure that is vastly different in scope from the statute at issue in McMillan. The dissent ably articulates the radical nature of this change: the sentencing judge’s role, in large measure, no longer extends to controlling the effect of any of his or her findings on the sentence. However, we do not believe that this radical change has the effect on the constitutionally required standard of proof at sentencing that the dissent suggests.

Even before the Guidelines were enacted, a convicted criminal had a protected interest at sentencing.⁵ The criminal justice system assumed that the best way to protect that interest, as well as society’s interest in just punishment, was to give the sentencing judge full discretion to consider all relevant information and to determine the effect, if any, the information ought to have on the sentence. The Guidelines are the product of a change of heart. Congress no longer believes that discretionary sentencing adequately serves the defendant’s interest in a fair sentence and has decided to confer greater protection by providing uniform guidelines for sentencing. This change of heart, however, implicates the Supreme Court’s warning against the erroneous reasoning that when a legislature undertakes to provide sentencing guidance, the standard of proof automatically increases at sentencing: “Pennsylvania’s decision to [assign a predetermined effect to a sentencing factor] has not transformed against its will a sentencing factor into an ‘element’ of some hypothetical ‘offense,’ ” thereby requiring a heightened standard of proof. McMillan, 477 U.S. at 90, 106 S.Ct. at 2418,

The bifurcation of the administration of criminal justice into a conviction stage and a sentencing stage has not changed under the Guidelines. The purpose of the Guidelines was not to make sentencing factors any more or less important relative to the offense of conviction in the sentencing process than they were under pre-Guidelines procedures. Rather, the purpose was to make the effect sentencing factors have on the sentence more uniform and predictable. Guidelines Manual, ch. 1, part A(3). Indeed, the Sentencing Commission made a studied attempt to conform the Guidelines to an empirical base that showed the effects judges traditionally gave to sentencing factors under preGuidelines procedures. Id. The Commission anticipated that some would criticize their approach “as overly cautious, as representing too little a departure from preguidelines sentencing practice,” but it believed that the goal of reducing sentence disparity could be accomplished without a more radical change in philosophy. Id. at part A(5) (emphasis added). The intent to perpetuate the distinction between the interests and burdens of the trial stage and the sentencing stage under the Guidelines is also supported by the express direction of Congress and the Commission that the Guidelines not limit the evidence admissible at sentencing. 18 U.S.C. § 3661 (“No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.”); U.S.S.G. § 6A1.3(a); see also U.S.S.G. § 1B1.4.

The preponderance of the evidence standard of proof is consistent with the greater formality in factfinding required by the Guidelines. We believe that the greater formality itself — such as fully adversarial factfinding procedures and the right to appeal sentencing findings — adequately protects the convicted defendant’s interest without the need for a higher standard of proof.⁶ The Chairman of the Sentencing Commission, William Wilkins, and the Commission’s General Counsel, John Steer, support this position in their article, “Relevant Conduct: The Cornerstone of the Federal Sentencing Guidelines”:

The guidelines enhance procedural fairness by largely determining the sentence according to specific, identified factors, each of which a defendant has an opportunity to contest, through evidentiary presentation or allocation [sic], at a sentencing hearing. The advent of guideline sentencing thus presents no convincing reason to conclude that constitutional standards are somehow stricter when guidelines are used to assist in fashioning the appropriate sentence, or that policy considerations compel use of a higher standard. Hence, courts should apply the guideline adjustments within the realm of Relevant Conduct when those adjustments are established by the preponderance of the evidence.

41 S.C.L.Rev. 495, 519 (1990) (footnotes omitted). The Sentencing Commission, itself, sought to avoid too great an increase in the formality of sentencing procedures under the Guidelines:

A fact-finding process for sentencing decisions that has all the attributes of a formal trial could consume many times the resources devoted to the resolution of guilt or innocence. Ultimately, such an approach would render the sentencing process completely unworkable.

Supplementary Report, supra, at 45.⁷

The Guidelines have made the defendant’s interest in a fair sentence more defined and protectible. However, we emphasize that the convicted defendant’s liberty interest is not an interest in the maximum guideline sentence set by the offense of conviction alone, as the dissent maintains. The Supreme Court has recognized that due process protects a defendant’s interest in fair sentencing, but has emphasized in the same cases that the interest is not defined as a liberty interest in a sentence below the statutory maximum. McMillan, 477 U.S. at 92 n. 8, 106 S.Ct. at 2419 n. 8 (“Once the reasonable-doubt standard has been applied to obtain a valid conviction, the criminal defendant has been constitutionally deprived of his liberty to the extent that the State may confine him.” (Internal quotation omitted)); Gardner, 480 U.S. at 358, 97 S.Ct. at 1204 (“[T]he sentencing process, as well as the trial itself, must satisfy the requirements of the Due Process Clause. Even though the defendant has no substantive right to a particular sentence within the range authorized by statute, the sentencing is a critical stage of the criminal proceeding_”).

A convicted defendant has an interest in the accurate application of the Guidelines within statutory limits, nothing more, nothing less.⁸ That interest is a far cry in weight and importance from the' liberty interest enjoyed by the defendant at trial. The statute for the offense of conviction sets the constitutional parameters of a possible sentence. Once those limits are established by a valid conviction on proof beyond a reasonable doubt, the defendant’s liberty interest has been greatly reduced. However, factfinding is still necessary under some legislative schemes to set the sentence accurately within statutory limits, such as the Pennsylvania statute in McMillan and the Guidelines. The teaching of McMillan is that, as a general matter, due process is satisfied by a preponderance of the evidence standard of proof for that factfinding. 477 U.S. at 92, 106 S.Ct. at 2419.

The Supreme Court did recognize in McMillan that there may be an exception to the general rule that the preponderance standard satisfies due process when a sentencing factor has an extremely disproportionate effect on the sentence relative to the offense of conviction. 477 U.S. at 87-91, 106 S.Ct. at 2416-18. However, the extremely disproportionate effects that might lead the Supreme Court to require a higher standard of proof at sentencing have nothing in common with this case.

For example, in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), the Court considered a Maine statute that required a defendant who otherwise might be convicted of murder to prove that he acted in the heat of passion on sudden provocation in order to avoid a murder conviction (which carried with it a mandatory term of life imprisonment) and, instead, be convicted of manslaughter (for which the maximum penalty was twenty years imprisonment). The Court pointed out that almost from the inception of the common law, the presence or absence of heat of passion has been the single most important factor in determining a homicide defendant’s degree of culpability. Id. at 696, 95 S.Ct. at 1888. The Court also emphasized the significant difference in the stigma and sentences associated with murder and manslaughter and held that, consequently, due process requires the prosecution to prove at trial absence of heat of passion beyond a reasonable doubt. Id. at 698-700, 703-04, 95 S.Ct. at 1889-90, 1892.

Similarly, in Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967), the Court held that a defendant convicted under a statute carrying a maximum sentence of ten years could not be sentenced under another statute based on certain findings when the separate statute prescribed an indeterminate period of incarceration of from one day to life imprisonment, the necessary findings were not ingredients of the original offense, and the findings were made without procedural safeguards approaching those afforded at trial. Id. at 608-10, 87 S.Ct. at 1211-12. Indeed, the Court indicated that, in view of the consequences, the factors relevant in Specht amounted to a new criminal charge against the defendant. Id. at 610, 87 S.Ct. at 1212.⁹

The nature and effect of the disputed sentencing factors in this case differ markedly from the factors at issue in Mullaney and Specht. Under Guideline § 2D1.1, the quantity of cocaine involved in a defendant’s uncharged conduct raises his or her offense level.¹⁰ In this case, the judge found that in addition to the 37.5 grams of cocaine involved in the two counts for which Restrepo was convicted, he was responsible for 65.83 grams associated with the conviction of his codefendant, DeMaldo-nado. Like the firearm possession in McMillan, 477 U.S. at 89, 106 S.Ct. at 2417, such a finding is not an uncommon sentencing factor. Nor does it drastically affect the length of his sentence, as in Mullaney and Specht. Furthermore, unlike Mulla-ney, the finding at issue here did not become relevant until after the defendant had been convicted. Cf. McMillan, 477 U.S. at 87, 106 S.Ct. at 2416. And, unlike Specht, the Guidelines did not expose this defendant, once convicted, to statutory penalties other than those originally specified for the offense of conviction. Indeed, as in McMillan, the statutory penalties to which the defendant was exposed have remained unchanged with the enactment of the Guidelines. Cf. 477 U.S. at 86, 89, 106 S.Ct. at .¹¹

The district court’s finding at sentencing that Restrepo was responsible for an additional 65.83 grams of cocaine raised Restre-po’s offense level from fourteen to eighteen, potentially increasing his sentence by a minimum of twelve months, or a maximum of twenty months, depending on his criminal history category. See Guidelines Manual, ch. 5, part A (Sentencing Table). The finding simply is not “a tail which wags the dog of the substantive offense.” McMillan, 477 U.S. at 88, 106 S.Ct. at 2417. Whether such an offending tail will yet arise under the Guidelines in this circuit is a question for the future.¹²

We hold, as a general rule and as a rule appropriate for the facts of this case, that due process does not require a higher standard of proof than preponderance of the evidence to protect a convicted defendant’s liberty interest in the accurate application of the Guidelines. We emphasize that the preponderance of the evidence standard is a meaningful one that requires the judge to be convinced “by a preponderance of the evidence that the fact in question exists.” United States v. Streeter, 907 F.2d 781, 792 (8th Cir.1990); see also 9 J. Wigmore, Evidence § 2498 (Chadbourn rev. 1981). It is a “ ‘misinterpretation [of the preponderance test] that it calls on the trier of fact merely to perform an abstract weighing of the evidence in order to determine which side has produced the greater quantum, without regard to its effect in convincing his mind of the truth of the proposition asserted.’ ” Winship, 397 U.S. at 367-68, 90 S.Ct. at 1074 (quoting Dorsen & Rezneck, In Re Gault and the Future of Juvenile Law, 1 Fam.L.Q. No. 4, 26-27 (1967)).

It appears that in Restrepo’s case, the district court found that the government had proved Restrepo’s and DeMaldonado’s participation in a common scheme by convincing evidence. The court said:

Now, in this case, the facts plainly support the conclusion and no other conclusion that the drugs which Judith Maldonado [sic] sold in Count Three and the drugs which she possessed in Count Four and the drugs that were folmd at her house late when she turned them in, were all part of the common scheme.... I’m satisfied certainly by a preponderance of evidence and in fact, I think, by clear and convincing evidence that Dario Restrepo supplied the cocaine that Judith Maldonado [sic] had at her house and that she sold on March 1, the other cocaine that he wasn’t convicted of.

Transcript of Sentencing Proceedings at 64-65. We conclude that the district court applied, at a minimum, the preponderance of the evidence standard of proof and is, therefore, beyond reproach.

Restrepo’s sentence is AFFIRMED.

1 . The Third Circuit has recognized that if a sentencing factor has an extreme effect on the sentence, such as a departure from 30 months (the median of the applicable guideline range in that case) to 30 years, the sentencing factor has become "‘a tail which wags the dog of the substantive offense.’ ” United States v. Kikumura, 918 F.2d 1084, 1101 (3d Cir.1990) (quoting McMillan, 477 U.S. at 88, 106 S.Ct. at 2417). Consequently, the court concluded that the factor must be proven by clear and convincing evidence. Id. at 1102. The Eighth Circuit has also suggested, without deciding, that a sentencing factor that produces an 18-/evel increase in a base offense level and a 7-fold increase in the permissible sentencing range may require clear and convincing evidence before it can be applied. United States v. Townley, 929 F.2d 365, 370 (8th Cir.1991).

2 . Although McMillan involves state legislation rather than federal legislation, we believe that the due process analysis in McMillan applies equally in the federal and state context. Wilson, 900 F.2d at 1353.

3 . "[The Pennsylvania Legislature] simply took one factor that has always been considered by sentencing courts to bear on punishment—the instrumentality used in committing a violent felony—and dictated the precise weight to be given that factor if the instrumentality is a firearm." McMillan, 477 U.S. at 89-90, 106 S.Ct. at 2417-18.

4 . The dissent argues that the maximum penalty available is no longer the statutory maximum under the Guidelines because a judge no longer has discretion to sentence up to the statutory maximum if the Guideline sentence, properly acquired, falls below that maximum. We agree that the discretion to sentence above the guideline range is limited. See Guidelines §§ 5K1.1-2.15. However, we disagree that the limitation of discretion alters “the maximum penalty available for the crime committed” in any way that the Supreme Court would recognize as important for the constitutionally required standard of proof at sentencing. In other words, we believe that the Supreme Court’s reasons for focusing on the statutory maximum as a fixed limit that must not be violated during sentencing do not change even in the context of the Guidelines, where the sentence is largely predetermined by the sentencing factors. We discuss our reasons for this view at greater length in the body of the opinion.

5 .The dissent erroneously assumes that, before the Guidelines, a defendant had no liberty interest to be protected at sentencing and that the Guidelines create one. However, where there are due process requirements in the criminal context, as articulated in McMillan, 477 U.S. at 91-93, 106 S.Ct. at 2418-19, presumably there is a liberty interest being protected. See also Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 1204, 51 L.Ed.2d 393 (1977) (plurality) (“[I]t is now clear that the sentencing process, as well as the trial itself, must satisfy the requirements of the Due Process Clause."). Nevertheless, the Court has made it clear that the convicted criminal’s interest is not defined as a liberty interest in a sentence below the statutory maximum, as the dissent suggests. See our discussion infra.

6 . Indeed, none of the cases cited by the dissent in support of a heightened liberty interest created by the Guidelines require the reasonable doubt standard to protect the purportedly analogous interests. See Hewitt v. Helms, 459 U.S. 460, 476, 103 S.Ct. 864, 873, 74 L.Ed.2d 675 (1983) (prisoner’s liberty interest in avoiding administrative segregation protected adequately by only informal, nonadversarial evidentiary review, notice to the prisoner, and opportunity for the prisoner to present his or her views); Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 16, 99 S.Ct. 2100, 2108, 60 L.Ed.2d 668 (1979) (prisoner’s liberty interest in parole release protected adequately by informal hearing and notice of the reasons for parole denial); see abo Board of Pardons v. Allen, 482 U.S. 369, 381, 107 S.Ct. 2415, 2422, 96 L.Ed.2d 303 (1987) (relying on Greenholtz). The dissent relies primarily on four cases to support its argument for a greater standard of proof than preponderance of the evidence. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (termination of parental rights); Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979) (involuntary commitment to a mental institution); Woodby v. INS, 385 U.S. 276, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966) (citizen facing denatu-ralization); Chaunt v. United States, 364 U.S. 350, 81 S.Ct. 147, 5 L.Ed.2d 120 (1960) (termination of parental rights). However, the Supreme Court has explained that Santosky and Addington are inapplicable in the criminal sentencing context because they are not criminal cases addressing the sentencing interests of an individual already convicted beyond a reasonable doubt. See McMillan, 477 U.S. at 92 n. 8, 106 S.Ct. at 2419 n. 8. Woodby and Chaunt are inapposite for the same reason.

7 . Similar concerns supported the Supreme Court’s conclusion in McMillan that the preponderance standard for factfinding at sentencing satisfies due process:

[E]mbracing petitioners’ suggestion that we apply the clear-and-convincing standard here would significantly alter criminal sentencing, for we see no way to distinguish the visible possession finding at issue here from a host of other express or implied findings sentencing judges typically make on the way to passing sentence.

477 U.S. at 92 n. 8, 106 S.Ct. at 2419 n. 8.

8 . Cf. Burns v. United States, - U.S. -, 111 S.Ct. 2182, 2192, 115 L.Ed.2d 123 (1991) (J. Souter, dissenting). In dissent, Justice Souter, joined by Justices White and O’Connor, suggested that "a defendant enjoys an expectation subject to due process protection that he will receive a sentence within the presumptively applicable range in the absence of grounds defined by the Act as justifying departure.” Id. The “presumptively applicable range,” of course, is not a range based only on the offense of conviction. As Justice Souter’s quotation and the context of the case in which it was given makes clear, the presumptively applicable range is the range established after consideration of all the sentencing factors set out in the Guidelines, not before. See also U.S.S.G. § IB 1.2. Indeed, there would be little purpose for a sentencing stage of the criminal justice process if a convicted defendant had a legitimate expectation that his or her sentence would be based solely on the offense of conviction.

9 . Specht was decided before the reasonable doubt standard was fixed for all elements of a crime in In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). The Supreme Court has not rejected the suggestion that had Specht been decided after Winship, the reasonable doubt standard would have been expressly named as a required safeguard in the circumstances of that case. See McMillan, 477 U.S. at 89, 106 S.Ct. at 2417.

10 . The sentencing judge’s findings under Guideline § IB 1.3(a)(2) determine the quantity of cocaine used in computing the sentence. Section lB1.3(a)(2) provides in relevant part:

(a) Unless otherwise specified, (i) the base offense level where the guideline specifies more than one base offense level, (ii) specific offense characteristics and (iii) cross references in Chapter Two, and (iv) adjustments in Chapter Three, shall be determined on the basis of the following:

(2) solely with respect to offenses of a character for which § 3D1.2(d) would require grouping of multiple counts, all such acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction; ...

U.S.S.G. § lB1.3(a)(2) (emphasis added).

11 . We also note there is little dispute in this case that the conduct considered at Restrepo's sentencing was part of the "same course of conduct or common scheme or plan as the offense of conviction.” Guidelines § lB1.3(a)(2). The present case thus appears distinguishable from Specht, where the factor considered at sentencing "was not an ingredient of the offense charged.” 386 U.S. at 608, 87 S.Ct. at 1211.

12 . For examples of two scenarios under the Guidelines that threatened an unacceptable sentencing effect under only a preponderance of the evidence standard, see supra note 1.