United States v. Jackson

23 F. App'x 866

Opinion

MEMORANDUM

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Clifford L. Jackson appeals the 48-month sentence imposed by the district court following his guilty plea conviction for use of a communication facility to facilitate a felony narcotics offense, in violation of 21 U.S.C. § 843(b). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Jackson contends that because of the disproportionate impact of the district court’s finding that he was involved in cocaine distribution, proof by clear and convincing evidence was required, rather than by a preponderance of the evidence. Jackson, however, did not object at sentencing to the district court’s application of the preponderance of the evidence standard, and therefore, we review for plain error. See United States v. Jordan, 256 F.3d 922, 926 (9th Cir.2001) (concluding that to warrant correction, plain error must affect substantial rights and seriously affect the fairness, integrity, or public reputation of judicial proceedings).

After extensive litigation over the issue of whether Jackson had facilitated a cocaine or marijuana drug-trafficking offense, the district court applied the preponderance of the evidence standard, and yet found “indisputable” the evidence that Jackson’s offense involved more than one kilogram of cocaine. Thus, even if clear and convincing evidence was required, the district court satisfied this standard by finding Jackson’s involvement in cocaine, “indisputable.” Considering the evidence on record to support this finding, we conclude there was no error. Id. at 933.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.