NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

EUGENE DARRYL TEMKIN, 

Defendant-Appellant.

No. 16-50137 

D.C. No. 

2:10-cr-00813-SVW-1 

MEMORANDUM*

Appeal from the United States District Court

for the Central District of California

Stephen V. Wilson, District Judge, Presiding

Argued and Submitted October 2, 2017

Pasadena, California

Before: RAWLINSON and N.R. SMITH, Circuit Judges, and KORMAN,**

District Judge.

Eugene Temkin was convicted principally of murder for hire in violation of 

18 U.S.C. § 1958(a), and he was sentenced initially to 72 months’ incarceration. 

See United States v. Temkin, 797 F.3d 682, 686–88 (9th Cir. 2015). The sentence 

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Edward R. Korman, United States District Judge for 

the Eastern District of New York, sitting by designation.

FILED

NOV 16 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 16-50137 

was vacated on appeal because of an error in the calculation of the Sentencing 

Guidelines. See id. at 692–96. Temkin was then resentenced to 144 months, based 

on the new range of 210–262 months that we found applicable, see id. at 695 & 

n.5, and on new findings regarding Temkin’s post-conviction conduct. On this 

appeal, Temkin argues that the district court erred by not expressly applying the 

“clear and convincing” standard to its factual findings at resentencing. We affirm.

As a general rule, a district court’s factual findings at sentencing need only 

be established by a preponderance of the evidence. See, e.g., United States v. 

Hymas, 780 F.3d 1285, 1289 (9th Cir. 2015). We have recognized an exception to 

this rule “when a sentencing factor has an extremely disproportionate effect on the 

sentence relative to the offense of conviction.” Id. (quoting United States v. Mezas 

de Jesus, 217 F.3d 638, 642 (9th Cir. 2000)). In such scenarios, we have applied 

the “higher clear and convincing standard.” Id.

However, we have applied this exception “only in the case of federal 

guideline sentencing enhancements.”1 United States v. Felix, 561 F.3d 1036, 1046 

 

1 The Government argues that, because the Guidelines have been 

advisory since United States v. Booker, 543 U.S. 220, 227 (2005), we should 

abandon the “disproportionate effect” exception entirely. We have, however, 

expressly held “that the clear and convincing standard still pertains post-Booker for 

an enhancement applied by the district court that has an extremely disproportionate 

effect on the sentence imposed.” United States v. Staten, 466 F.3d 708, 718 (9th 

Cir. 2006). Contrary to the Government’s argument, Beckles v. United States, 

137 S. Ct. 886 (2017), does not justify overruling Staten. Beckles just held that “the 

advisory Sentencing Guidelines are not subject to a vagueness challenge under the 
3 16-50137 

(9th Cir. 2009) (quoting United States v. Dare, 425 F.3d 634, 642 (9th Cir. 2005)). 

Indeed, when asked to extend the exception beyond Guidelines enhancements, we 

have refused to do so. See, e.g., United States v. Collins, 684 F.3d 873, 889 (9th 

Cir. 2012). Here, the challenged findings did not trigger any Guidelines 

enhancements. Rather, they influenced the extent to which the district court 

downwardly departed from the Guidelines. The “disproportionate effect” 

exception, therefore, does not apply here.

Moreover, even if it did, the findings regarding Temkin’s post-conviction 

conduct while incarcerated at FCI Terminal Island did not have a disproportionate 

effect on his sentence. Originally, the district court sentenced Temkin to 72 

months––40.5% below the low end (121 months) of his initial Guidelines range. At 

resentencing, taking the Terminal Island findings into consideration, the district 

court sentenced Temkin to 144 months––31.4% below the low end (210 months) 

of the higher, recalculated range. To the extent the Terminal Island findings 

affected or “enhanced” Temkin’s sentence, they seemingly did so by resulting in a 

downward departure of only 31.4% and not 40.5%.2

 

Due Process Clause,” and it expressly did “not render the advisory Guidelines 

immune from constitutional scrutiny.” Id. at 895. Beckles thus does not foreclose 

our ability “to satisfy due process concerns” by sometimes requiring a heightened 

standard of proof. Staten, 466 F.3d at 717.

2 Temkin argues that the Terminal Island findings “enhanced” his 

sentence by 72 months. However, in increasing the sentence by that amount, the 
4 16-50137 

This was not disproportionate. In determining what constitutes a 

disproportionate effect on a sentence, we look to the “totality of the circumstances” 

and apply a six-factor test first articulated in United States v. Valensia, 222 F.3d 

1173, 1182 (9th Cir. 2000), cert. granted and judgment vacated on other grounds, 

532 U.S. 901 (2001). E.g., United States v. Pike, 473 F.3d 1053, 1057 (9th Cir. 

2007). We are satisfied that Temkin’s sentence was not disproportionate under that 

test, but we need not engage in a discussion of the Valensia factors because clear 

and convincing proof did support the district court’s finding. 

To meet the clear and convincing standard, “a party must present sufficient 

evidence to produce ‘in the ultimate factfinder an abiding conviction that the truth 

of its factual contentions are [sic] highly probable.’” Sophanthavong v. Palmateer, 

378 F.3d 859, 866 (9th Cir. 2004) (quoting Colorado v. New Mexico, 467 U.S. 

310, 316 (1984)). Here, overwhelming evidence supported the district court’s 

finding that Temkin, while incarcerated at Terminal Island, attempted to recruit a 

fellow inmate in a plan to extort and possibly murder Michael Hershman and his 

associates. The government provided a sheet of paper that Temkin gave to the 

inmate, containing Hershman’s email addresses, along with the names of his 

 

district court not only considered the Terminal Island findings but also that we had 

increased the Guidelines range from 121–151 to 210–262 months. Therefore, the 

findings alone did not result in the 72-month increase.
5 16-50137 

children, in-laws, friends, business associates, and casinos. The evidence also 

consisted of a recorded conversation between Temkin and the inmate, in which 

Temkin made several statements suggesting he believed he was recruiting the 

inmate to extort and murder Hershman and others. Even more damning: the FBI 

provided the inmate with false contact information for “a purported Russian 

hitman,” which the inmate relayed to Temkin. Around a month later, the inmate 

told the FBI that Temkin had mailed to the “hitman” photocopies of the driver’s 

licenses of Hershman, Hershman’s wife, and another person, as well as the 

passport photos of Hershman’s wife and daughter. Soon thereafter, those 

documents arrived at the P.O. Box the FBI had provided. And finally, there was a 

transcript of a phone call that Temkin made to the “Russian hitman,” in which 

Temkin stated “I’ve been trying to get ahold of you for some time” and 

“[e]verything else should be available to you with a little research and uh a bit of 

understanding as to things, and, as they transpired.” This record provides “clear

and convincing” evidence that Temkin, while at Terminal Island, actively 

attempted to arrange for the extortion and death of Hershman.3

AFFIRMED.

 

3 To the extent that this discussion of the events at Terminal Island 

discloses information from sealed portions of the record, we unseal those portions 

of the record for the limited purpose of referencing the events discussed in this 

disposition.