FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 05-30055

Plaintiff-Appellee, D.C. No.

v. CR-04-00039-SEH

SUE ELLEN STATEN,  ORDER

Defendant-Appellant. AMENDING

OPINION AND

AMENDED

OPINION 

Appeal from the United States District Court

for the District of Montana

Sam E. Haddon, District Judge, Presiding

Argued and Submitted

December 6, 2005—Seattle, Washington

Filed June 7, 2006

Amended August 31, 2006

Before: Ronald M. Gould and Marsha S. Berzon,

Circuit Judges, and William W Schwarzer,* District Judge.

Opinion by Judge Berzon

*The Honorable William W Schwarzer, Senior United States District

Judge for the Northern District of California, sitting by designation. 

10509
COUNSEL

June Lord, Great Falls, Montana, for defendant-appellant Sue

Ellen Staten. 

10512 UNITED STATES v. STATEN
William W. Mercer, United States Attorney, and Joseph E.

Thaggard, Assistant United States Attorney, United States

Attorney’s Office, Great Falls, Montana, for plaintiff-appellee

United States of America. 

ORDER

The opinion filed June 7, 2006, slip. op. 6211, and published at 450 F.3d 384 (9th Cir. 2006) is hereby amended as

follows: 

1. At slip op. 6227, delete from “There is an additional reason . . . .” through to the end of Part III of the opinion.

2. Replace deleted text with Section C in the attached

amended opinion, starting with the language “There is an

additional reason . . . .” through to “. . . . as determined

in accord with existing case law, the enhancement must

be supported by facts established by clear and convincing

evidence.” 

No petitions for rehearing will be entertained.

OPINION

BERZON, Circuit Judge: 

United States v. Booker held that although district courts

are no longer required to follow the United States Sentencing

Guidelines (“Guidelines”), when making sentencing decisions, “the [Sentencing Reform] Act nonetheless requires

judges to take account of the Guidelines together with other

sentencing goals.” 543 U.S. 220, 259 (2005) (citing 18

U.S.C.A. § 3553(a) (Supp. 2004)); see also United States v.

Cantrell, 433 F.3d 1269, 1278 (9th Cir. 2006)

UNITED STATES v. STATEN 10513
(“[N]otwithstanding that the Guidelines are now effectively

advisory, . . . district courts, while not bound to apply the

Guidelines, ‘should still consult them for advice as to the

appropriate sentence.’ ” (citation omitted)). Concomitantly, as

we have repeatedly held in the aftermath of Booker, we continue to have a duty to review district courts’ required application of the Guidelines. We do so to assure that the district

courts properly appreciate the advice offered by the nowadvisory Guidelines before factoring that advice into their

determination, under 18 U.S.C. § 3553(a), of the appropriate

sentence. See United States v. Mix, 442 F.3d 1191, 1195 (9th

Cir. 2006) (“[A]s was the case before Booker, the district

court must calculate the Guidelines range accurately. A misinterpretation of the Guidelines by a district court effectively

means that [the district court] has not properly consulted the

Guidelines.” (last alteration in original) (internal citations and

quotation marks omitted)).

Conducting the requisite review of the post-Booker application of the Guidelines in this case, we conclude that the district court failed properly to take account of the appropriate

factors when applying the Guidelines section 2D1.1(b)(5)(B)

enhancement for creating a substantial risk of harm to human

life or the environment. We therefore vacate the sentence

imposed on Sue Ellen Staten and remand for resentencing. 

I.

The events which ultimately resulted in this appeal developed as follows:1

 On October 24, 2003, Sue Ellen Staten and

Jennifer Gatewood rented two adjacent rooms at the Terrace

Motel, numbered 8 and 9. Later that night, Staten helped to

carry a microwave into room 8, where Denis K. Loftis, Gate1The facts recited in this section reflect, for the most part, those recited

in the presentence investigation report (“PSR”) prepared by the probation

office for the district judge. At sentencing, Staten confirmed that she had

no objections to the facts recited in the PSR. 

10514 UNITED STATES v. STATEN
wood’s boyfriend, had assembled equipment necessary to

manufacture methamphetamine. Loftis and Staten were

arrested in room 8 by officers who had been tipped off to the

manufacturing operation. Because of the perceived hazardous

environment, the motel was evacuated. A hazardous materials

disposal team seized, among other things, the following items

from the rooms: “a kitchen bowl containing iodine and red

phosphorus; hypodermic syringes, one of which contained a

clear liquid substance; a Pyrex plate with methamphetamine

residue; canning jars containing a liquid substance; razor

blades; a microwave oven; a Fry Daddy deep fat fryer; and

several 20 ounce soft drink bottles containing liquid substances.” The PSR concluded that Staten had conspired with

Gatewood and Loftis in several manufacturing operations,

which resulted in the “produc[tion] [of] a conservative

amount of one-half gram of methamphetamine” on each occasion. 

Staten pleaded guilty pursuant to a plea agreement to conspiracy to manufacture methamphetamine under 21 U.S.C.

§§ 841(a)(1) and 846. The PSR, prepared on July 23, 2004,

prior to the issuance of Booker, assessed a base offense level

of twelve pursuant to Guidelines section 2D1.1(c)(14) and

increased the offense level to twenty seven pursuant to section

2D1.1(b)(5)(B). The latter provides for an increase of three

offense levels or, if the resulting increase is less than twenty

seven, an increase of the offense level to twenty seven “[i]f

the offense involved (i) the manufacture of . . . methamphetamine; and (ii) created a substantial risk of harm to (I) human

life . . . ; or (II) the environment.” U.S. Sentencing Guidelines

Manual § 2D1.1(b)(5)(B) (emphases added).2 The PSR also

2The presentence investigation report relied on the 2003 edition of the

Guidelines. Staten’s sentencing occurred on January 27, 2005, at which

point the 2004 edition of the Guidelines was in effect. According to the

Guidelines, a district court “shall use the Guidelines Manual in effect on

the date that the defendant is sentenced.” U.S. Sentencing Guidelines

Manual § 1B1.11(a) (2004); see United States v. Benitez-Perez, 367 F.3d

UNITED STATES v. STATEN 10515
recommended a two-level decrease for acceptance of responsibility pursuant to section 3E1.1(a) and a one-level decrease

for timely notifying government of her intention to plead

guilty pursuant to section 3E1.1(b). Because Staten fell into

criminal history category III, the PSR concluded that a Guidelines imprisonment range of sixty-three to seventy-eight

months was appropriate. See id. ch. 5, pt. A (Sentencing

Table). 

The sentencing hearing occurred just after Booker was

decided. In light of Booker, the district court treated the

Guidelines as “advisory only.” The district court allowed

argument about the PSR at the sentencing hearing and invited

counsel to raise any other pertinent information. 

In response to that invitation, both parties submitted expert

reports with regard to the substantial risk of harm issue. Staten’s expert based his brief report on “the evidence and video

tape in this case.” While “not disput[ing] [that] there exist[ ]

potential dangers for all clandestine methamphetamine labs,”

Staten’s expert 

[could not] state, within a reasonable degree of scientific certainty, based upon the evidence found, evidence analyzed, lack of chemical odor notation and

the video tape, any “real” hazards or dangers existed

at the scene that would pose a significant threat or

1200, 1205 (9th Cir. 2004) (“A district court must apply the version of the

Sentencing Guidelines in effect on the date of sentencing, unless that

would pose an ex post facto problem.”). It seems, therefore, that the wrong

version of the Guidelines was applied at Staten’s sentencing. The 2004

amendments to the Guidelines, however, did not substantively change section 2D1.1(b)(5), or its Application Note; subdivision (b)(5) simply was

redesignated as subdivision (b)(6). See U.S. Sentencing Guidelines Manual § 2D1.1 hist. note (2004); id. app. C, amend. 667 (2004). As the version used thus does not matter, we refer, as do the parties, to the 2003

edition of the Guidelines. 

10516 UNITED STATES v. STATEN
danger to any persons other than the cook and those

present in the room. 

The government’s expert presented a report which detailed

various “hazards associated with methamphetamine manufacture.” According to this report, such hazards include the

potential for flash fire caused by the atmospheric concentration of alcohol; “[the health hazard and dangers] associated

with iodine tinctures or [the] handling of iodine crystals”; the

generation of hydriodic acid, a respiratory irritant; the generation of hydriodic acid fumes and phosphine gas, both of

which are potentially lethal; the possibility that the coffee or

paint filters used to collect solid red phosphorus might autoignite; the dangers associated with handling caustic lye

(sodium hydroxide); the need to dispose of chemical waste

generated by the manufacturing process; the potential for others to be exposed to improperly disposed of waste; and the

potential for subsequent occupants of the location of the manufacture to be “unwitting[ly] expos[ed] to methamphetamine

residue and other hazardous by-products of the manufacturing

process.” 

At sentencing, Deputy Jergens testified that while he was

searching the motel room he found what appeared to be an

uncovered container of iodine and an uncovered container of

Coleman fuel. He also testified that between three and five

people were evacuated from the motel, including two from an

adjacent room. 

Staten objected to the section 2D1.1(b)(5)(B) enhancement

on the ground that the Booker advisory Guidelines remedy

may not be applied to a pre-Booker crime and so, under

Blakely v. Washington, 542 U.S. 296 (2004), the facts supporting the enhancement must be proved beyond a reasonable

doubt. She also maintained that on any burden of proof, the

district court did not properly determine that the enhancement

was supported by the established facts. The district court

rejected both arguments, observing that any Guidelines calcuUNITED STATES v. STATEN 10517
lation was “only an advisory component” of the factors it was

obliged to consider under Booker. The district court then

explained that, in its view, the substantial risk of harm

enhancement was applicable. After recognizing that under

Booker it was to consider all the factors set forth in 18 U.S.C.

§ 3553(a), the district court sentenced Staten to sixty-three

months imprisonment with three years of supervised release

to follow, a sentence within the calculated advisory Guidelines range. 

Staten now reasserts the objections she raised at her sentencing: She argues, first, that the Booker advisory Guidelines

regime cannot apply to her, as she committed her crime

before Booker was decided, and that the failure to determine

whether the facts supporting the enhancement were proven

beyond a reasonable doubt therefore violated her due process

rights. Second, she argues that the district court erred in determining that the evidence presented at the sentencing hearing

and the facts established in the PSR support application of the

section 2D1.1(b)(5)(B) substantial risk of harm enhancement.

II.

“We review ex post facto challenges to sentencing decisions de novo.” United States v. Ortland, 109 F.3d 539, 543

(9th Cir. 1997); see also Hunter v. Ayers, 336 F.3d 1007,

1011 (9th Cir. 2003). While the constitutional prohibition

against ex post facto laws “by its terms, applies only to

changes in the law resulting from legislative or executive

action, . . . the [Supreme] Court has extended similar principles to the Due Process Clause to cover ‘unforseeable [judicial] construction of a criminal statute.’ ” United States v.

Dupas, 419 F.3d 916, 920 n.3 (9th Cir. 2005) (second alteration in original) (quoting Bouie v. City of Columbia, 378

U.S. 347, 354-55 (1964)), cert. denied, 126 S. Ct. 1484 (Mar.

6, 2006). Staten asserts such a due process argument, which

we review as we would a traditional ex post facto argument.

10518 UNITED STATES v. STATEN
Under Booker, we review the ultimate sentence imposed

under the factors set forth in 18 U.S.C. § 3553(a) for “reasonableness.” Cantrell, 433 F.3d at 1279. If, however, “there was

material error in the Guidelines calculation that serves as the

starting point for the district court’s sentencing decision, we

will remand for resentencing pursuant to 18 U.S.C. § 3742(f),

without reaching the question of whether the sentence as a

whole is reasonable in light of § 3553(a).” Id. at 1280; see

also Mix, 442 F.3d at 1195 (“If the district court incorrectly

construed the Sentencing Guidelines, we must vacate the sentence and remand for resentencing.”). 

“[W]e . . . review ‘the district court’s interpretation of the

Sentencing Guidelines de novo, the district court’s application

of the Sentencing Guidelines to the facts of [a] case for abuse

of discretion, and the district court’s factual findings for clear

error.” Cantrell, 433 F.3d at 1279 (alteration in original)

(quoting United States v. Kimbrew, 406 F.3d 1149, 1151 (9th

Cir. 2005)).3

3Prior to Booker, there was conflict in our case law regarding the standard of review for a district court’s application of the Guidelines to a particular sentence. Some pre-Booker decisions employed an abuse of

discretion standard. See, e.g., United States v. Alexander, 287 F.3d 811,

818 (9th Cir. 2002) (“ ‘We review the district court’s application of the

Sentencing Guidelines to the facts of a particular case for abuse of discretion.’ ” (quoting United States v. Leon-Reyes, 177 F.3d 816, 824 (9th Cir.

1999))); United States v. Robinson, 94 F.3d 1325, 1327 (9th Cir. 1996).

Other pre-Booker decisions reviewed a district court’s application of the

Guidelines de novo. See, e.g., United States v. Crawford, 372 F.3d 1048,

1053 (9th Cir. 2004) (en banc) (“The district court’s interpretation and

application of the Sentencing Guidelines are reviewed de novo.”); United

States v. Gonzalez, 262 F.3d 867, 869 (9th Cir. 2001) (per curiam); Ortland, 109 F.3d at 543. 

This conflict has continued post-Booker. In United States v. Smith, we

stated that post-Booker, “we review ‘the district court’s application of the

Sentencing Guidelines to the facts of this case for abuse of discretion’ ”

424 F.3d 992, 1015 (9th Cir. 2005) (quoting Kimbrew, 406 F.3d at 1151),

cert. denied, 126 S. Ct. 1477 (Mar. 6, 2006) and sub nom. Bates v. United

States, 126 S. Ct. 1770 (Apr 17, 2006). Both Smith and Kimbrew, though

UNITED STATES v. STATEN 10519
III.

A.

Staten maintains that the Due Process clause “prohibits

courts from applying the Booker remedy to the disadvantage

of any criminal defendant whose crime was committed before

Booker was decided,” and that she therefore is entitled to the

benefit of the Sixth Amendment rule that “[a]ny fact (other

than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted

by the defendant or proved to a jury beyond a reasonable

doubt.” Booker, 543 U.S. at 244; see also Blakely, 542 U.S.

at 301 (“ ‘Other than the fact of a prior conviction, any fact

that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved

beyond a reasonable doubt.’ ” (quoting Apprendi v. New Jersey, 530 U.S. 466, 490 (2000))). 

[1] Our decision in Dupas forecloses this argument. See

419 F.3d at 919-21 (holding that the application of Booker’s

remedial holding to sentencing determinations on direct

decided post-Booker, reviewed sentences imposed under the pre-Booker

mandatory Guidelines regime. See Smith, 424 F.3d at 1017; Kimbrew, 406

F.3d at 1154. Mix, a “true” post-Booker case, follows the abuse of discretion standard set forth in Smith. 442 F.3d at 1195 (“We review the application of the Sentencing Guidelines to the facts of the case for abuse of

discretion and factual findings for clear error.” (citing Smith, 424 F.3d at

1015)). In contrast, one post-Booker decision indicates that the applicable

standard of review is de novo. See United States v. Williamson, 439 F.3d

1125, 1137 n. 12 (9th Cir. 2006) (“We review the interpretation and application of the Guidelines de novo.”). 

As we would conclude that the district court here erred in its application

of the Guidelines under any standard of review, we save for another day

resolution of the standard of review for application of the Guidelines after

Booker. 

10520 UNITED STATES v. STATEN
review does not violate retroactivity due process concerns),

cert. denied, 126 S. Ct. 1484 (Mar. 6, 2006); see also Mix,

442 F.3d at 1198-99 (following Dupas). Like Dupas, when

Staten committed her crime she had “sufficient warning of the

potential consequences of [her] actions to satisfy . . . due process concerns.” Dupas, 419 F.3d at 921 (holding that fair

warning exists where the defendant had notice at the time of

the offense “that his sentence could be . . . set within the

applicable statutory maximum”). 

B.

[2] Staten’s sentence was enhanced in accord with section

2D1.1(b)(5)(B) of the Guidelines. That section provides:

If the offense (i) involved the manufacture of . . .

methamphetamine; and (ii) created a substantial risk

of harm to (I) human life other than a life described

in subdivision (C); or (II) the environment, increase

[the offense level] by 3 levels. If the resulting

offense level is less than level 27, increase to level

27. 

U.S. Sentencing Guidelines Manual § 2D1.1(b)(5)(B). Application Note 20(A), which applies to section 2D1.1(b)(5)(B),

provides: 

(A) Factors to consider. In determining, for purposes of subsection (b)(5)(B) or (C), whether the

offense created a substantial risk of harm to human

life or the environment, the court shall include consideration of the following factors: 

(i) The quantity of any chemicals or hazardous or

toxic substances found at the laboratory, and the

manner in which the chemicals or substances were

stored. 

UNITED STATES v. STATEN 10521
(ii) The manner in which hazardous or toxic substances were disposed, and the likelihood of release

into the environment of hazardous or toxic substances. 

(iii) The duration of the offense, and the extent of

the manufacturing operation. 

(iv) The location of the laboratory (e.g., whether

the laboratory is located in a residential neighborhood or a remote area), and the number of human

lives placed at substantial risk of harm. 

Id. § 2D1.1(b)(5)(B) cmt. n.20(A) (emphasis added). 

Staten submits that “there was no finding made in accordance” with Note 20(A). We agree, and hold that because the

district court failed to take Note 20(A) into account, a remand

for resentencing is necessary so that the district court can

make the factual determinations required by that note. 

[3] According to the Guidelines, the commentary that

accompanies a given section “may interpret the guideline or

explain how it is to be applied,” and “[f]ailure to follow such

commentary could constitute an incorrect application of the

guidelines.” Id. § 1B1.7. The Guidelines, including enhancements, are ordinarily applied in light of available commentary, including application notes. See Stinson v. United States,

508 U.S. 36, 38 (1993) (“[C]ommentary in the Guidelines

Manual that interprets or explains a guideline is authoritative

unless it violates the Constitution or a federal statute, or is

inconsistent with, or a plainly erroneous reading of, that

guideline.”); United States v. Allen, 434 F.3d 1166, 1173 (9th

Cir. 2006) (“The application notes to the Guidelines are

exactly that — notes about when a particular Guideline

applies and when it does not.”); United States v. LopezGarcia, 316 F.3d 967, 970 (9th Cir. 2003) (“We are bound to

follow the application notes.”); United States v. McKinney, 15

10522 UNITED STATES v. STATEN
F.3d 849, 852 n.8 (9th Cir. 1994) (noting that “the district

court was . . . obliged to assess [the defendant’s] conduct in

light of the ‘appropriate considerations’ listed in the application notes”). 

[4] Note 20(A) uses mandatory language. See U.S. Sentencing Guidelines Manual § 2D1.1(b)(5)(B) cmt. n.20(A)

(noting that “for purposes of subsection (b)(5)(B) . . . , the

court shall include consideration of the following factors”

(emphasis added)); see also United States v. Layne, 324 F.3d

464, 469 (6th Cir. 2003) (noting that 2001 amendments to the

Guidelines “made consideration of the factors set out in the

Application Notes to [the substantial risk of harm enhancement] mandatory”). The district court, however, failed for the

most part properly to consult the mandatory Note 20(A) factors, focusing instead primarily on factors present in any manufacture of methamphetamine: The court at sentencing

observed that the report submitted by the government’s expert

showed that (1) generally, the manufacture of methamphetamine creates a hazard to the health of the person engaged in

such manufacture and (2) studies had established that the

manufacture of methamphetamine can leave detectable traces

in the location of manufacture, creating a potential risk of

exposure to later occupants. The court further observed that

Staten’s own expert had confirmed the “potential danger for

all clandestine methamphetamine labs.” (emphasis added).

Based on these observations, the court stated:

I don’t see anything in that subdivision which, as

we have noted, is, in its advisory capacity to this

court, that suggests that a hazard to the cook is

excluded by the process or that the hazard of handling methamphetamine that has been manufactured

is excluded from the implications of the increase

contemplated. 

And I am taking as reasonable evidence the declaration from the statement of Mr. Ely that the carrying

UNITED STATES v. STATEN 10523
out of this process in a closed environment such as

a hotel room, would put future occupants at the risk

of unwitting exposure to the residues which are wellknown to exist where such an operation has been

carried out. 

Therefore, under the guideline program, and

emphasizing that this is an advisory matter only, it

is my determination that the guideline calculation

increase to an offense level of 27 is in fact appropriate in this case. 

[5] The general observations made by the district court do

not constitute adequate consideration of factors due under

Note 20(A). Note 20(A) requires analysis of whether, and the

extent to which, the specified considerations pertain on the

facts of the particular case. The language of each Note 20(A)

factor focuses on the circumstances involved in the prosecution at hand, not on generic dangers posed by methamphetamine manufacture: The note requires that the district court

look to the specific “quantity of any chemicals or hazardous

or toxic substances found”; “the manner in which the chemicals or substances were stored”; “the manner in which hazardous or toxic substances were disposed, and the likelihood of

release into the environment”; “the duration of the offense,

and the extent of the manufacturing operation”; and “the location of the laboratory (e.g., whether the laboratory is located

in a residential neighborhood or a remote area) and the number of human lives placed at substantial risk of harm.” U.S.

Sentencing Guidelines Manual § 2D1.1(b)(5)(B) cmt.

n.20(A). As each enumerated consideration is cast in terms

that demand inquiry into the details of the particular case, the

district court may not rest application of the enhancement on

facts that are necessarily common to most or every manufacture. 

This focus on the specific characteristics of the particular

manufacturing operation is fully consistent with the pertinent

10524 UNITED STATES v. STATEN
guideline. Section 2D1.1(b)(5)(B) applies where there is “the

manufacture of . . . methamphetamine . . . and . . . a substantial risk of harm.” Id. § 2D.1.1(b)(5)(B) (emphasis added).

The conjunction indicates that the “substantial risk of harm”

must be in addition to those inherent in the manufacture of

methamphetamine. 

[6] Here, the district court’s reasons for applying the

enhancement were, for the most part, not specific in nature,

as required by Note 20(A). The court noted that

all clandestine methamphetamine labs create a potential for

danger, a consideration that is not pertinent under Note 20(A).

The court then emphasized that nothing in the language of the

enhancement precluded taking into account the risk posed to

persons engaged in the manufacture of the drug or those handling the final product. The latter consideration, however, is

always true for methamphetamine manufacture — someone

will always be producing the drug and someone will always

be handling the end product. The purpose of Note 20(A) —

which, under section 2D1.1(b)(5)(B), applies exclusively to

the production of methamphetamine and amphetamine — is

to distinguish specific harms from generic ones, so as to justify a higher sentence than ordinarily attaches to the manufacture of those drugs. The district court’s reliance on generic

harms, such as the usual potential for harm to “the cook,” was

therefore improper. 

The only case-specific factor spelled out in Note 20(A) that

the district court mentioned was “the location of the laboratory,” here, a motel room. Although the consideration that

potential future motel room occupants who might come into

contact with methamphetamine traces is case-specific, section

2D1.1(b)(5)(B) requires that the risk to human life and the

environment must be “substantial” for the enhancement to

apply. Note 20(A) specifies considerations pertinent to the

substantiality requirement, including the quantity of toxic substances found, the manner in which they were stored, and the

duration and extent of the manufacturing operation. The disUNITED STATES v. STATEN 10525
trict court did not mention these considerations, even though

the evidence showed an operation of short duration and

extent. Yet, these factors are pertinent to whether the locationspecific danger identified — the danger that future occupants

might inhale or ingest methamphetamine residue — is substantial. 

[7] We conclude that the district court’s application of the

section 2D1.1(b)(5)(B) enhancement, based in part on generic

factors and in part on inadequate consideration of the Note

20(A) factors, constitutes reversible legal error.4See McKinney, 15 F.3d at 853 n.8 (finding district court’s failure to consider application note factors to constitute reversible error). 

C.

There is an additional reason that the district court’s factual

findings were inadequate: The burden of proof standard

applied to those findings was too low. 

[8] In the aftermath of Booker, this circuit held that, as

before Booker, the preponderance of the evidence standard

generally satisfies due process concerns. We have indicated,

as well — also as before Booker — that a heightened burden

may sometimes be required post-Booker to satisfy due process

concerns. See United States v. Kilby, 443 F.3d 1135, 1140 n.1

(9th Cir. 2006) (noting that “[i]n some cases, where a sentencing factor would have an extremely disproportionate effect on

the sentence, the government may have to satisfy a clear and

convincing standard of proof”); United States v. Dare, 425

F.3d 634, 642 (9th Cir. 2005) (noting, in a post-Booker

4We do not mean to say that the district court must find each factor

mentioned in Note 20(A) satisfied to apply the section 2D1.1(b)(5)(B)

enhancement. All the district court is obliged to do is consider the factors

and, applying those that are relevant, determine whether the particular

manufacturing operation created a substantial risk of harm to human life

or the environment in light of those relevant factors. 

10526 UNITED STATES v. STATEN
review, that “[a]s a general rule, the preponderance of the evidence standard is the appropriate standard for factual findings

used for sentencing,” but, where an extremely disproportionate sentence results from the application of an enhancement,

“ ‘the government may have to satisfy a “clear and convincing” standard’ ” (quoting United States v. Hopper, 177 F.3d

824, 833 (9th Cir. 1999))), cert. denied, 126 S. Ct. 2959 (June

26, 2006).5 Also, in United States v. Lynch, a post-Booker

case that does not mention Booker, we reiterated the preBooker rule that “when a sentencing factor has an extremely

disproportionate effect on the sentence relative to the conviction, the government must prove such a factor by clear and

convincing evidence.” 437 F.3d 902, 916 (9th Cir. 2006) (en

banc) (per curiam). None of these cases, however, directly

determined whether the clear and convincing standard of

proof for certain cases survived Booker. 

The government recognizes that the fifteen-level enhancement that the district court applied had a disproportionate

impact on Staten’s sentence “since [the enhancement]

increased [her] offense level by more than four levels and

more than doubled her sentence.” The government accordingly posits that the facts underlying the sentence enhancement had to be proved by clear and convincing evidence,

instead of a preponderance of the evidence, relying on preBooker case law to that effect.6

See United States v. Peyton,

353 F.3d 1080, 1088 (9th Cir. 2003) (“The application of the

preponderance of the evidence standard, as opposed to the

5

In Dare, however, we declined to extend this heightened disproportionate impact standard to “statutory mandatory minimum sentence[s].” 425

F.3d at 642. 

6After the publication of the original opinion in this case, the government informed us that it has reconsidered its position and intends to argue

in future cases that “all factual findings under the Guidelines should be

made by preponderance of the evidence — and that, in light of Booker,

this Court’s line of cases to the contrary is no longer applicable.” The government did not, however, seek rehearing of this case and does not disagree with our description of the position it took in this appeal. 

UNITED STATES v. STATEN 10527
clear and convincing standard, violate[s] . . . due process

rights only if it le[ads] to enhancements that ha[ve] an

‘extremely disproportionate effect on the sentence relative to

the offense of conviction.’ ” (quoting United States v. Mezas

de Jesus, 217 F.3d 638, 642 (9th Cir. 2000))); United States

v. Jordan, 256 F.3d 922, 927-29 (9th Cir. 2001) (noting that

enhancements that have a disproportionate impact on sentences must be established by clear and convincing evidence).

We agree with the suggestion in our post-Booker cases and

with the government’s position in this case 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. 

[9] As set forth in Miller v. Gammie, “a three-judge panel

is free to reexamine the holding of a prior panel in light of an

inconsistent decision by a court of last resort on a closely

related, but not identical issue,” 335 F.3d 889, 899 (9th Cir.

2003) (en banc), when “the relevant court of last resort . . .

[has] undercut the theory or reasoning underlying the prior

circuit precedent in such a way that the cases are clearly irreconcilable,” id. at 900. This case presents the question whether

Booker is “clearly irreconcilable” with our precedent dictating

that in certain circumstances, “the Due Process Clause

requires the application of a clear and convincing evidence

standard when an enhancement based upon uncharged conduct has an extremely disproportionate effect on the length of

a defendant’s sentence.” United States v. Valensia, 222 F.3d

1173, 1182 (9th Cir. 2000); see also Dare, 425 F.3d at 642-

43. We conclude that it is not. 

Booker, like its predecessor Blakely v. Washington, 542

U.S. 296 (2004), does not discuss the role that standards of

proof play in criminal sentencing, nor does it discuss at all the

due process concerns that such standards are intended to satisfy. Instead, the constitutional ruling in Booker, like that in

Blakely, focused solely on the need to conform comprehen10528 UNITED STATES v. STATEN
sive sentencing schemes to the jury trial requirement of the

Sixth Amendment. See Booker, 543 U.S. at 232-33; Blakely,

542 U.S. at 301-02, 312-13. As nothing in the reasoning of

the constitutional opinion in Booker turns on due process concerns or burdens of proof, nothing in that opinion is irreconcilable with our heightened standard of proof cases. 

Once the Booker constitutional majority held that the mandatory Guidelines violate the Sixth Amendment jury trial

guarantee, however, the Booker remedial opinion devised a

sentencing scheme by severing some portions of the Sentencing Reform Act. One component of that sentencing scheme is

advisory rather than mandatory Guidelines. See Booker, 543

U.S. at 245-46. Our question is thus whether the reformation

to advisory Guidelines is irreconcilable with our prior case

law concerning a heightened standard of proof at sentencing

in limited circumstances. 

Under the advisory Guidelines, district courts are free to

make factual determinations not made by the jury and may

base their ultimate decisions regarding the length of a convicted criminal’s sentence on those determinations. Also, district courts are ordinarily required at least to consult the

Guidelines, and to make any factual findings required in

doing so. See id. (noting that Booker’s remedy “requires a

sentencing court to consider Guidelines ranges, but permits

the court to tailor the sentence in light of other statutory concerns as well” (citations omitted)); Cantrell, 433 F.3d at 1279

(noting the “continuing [statutory] duty of district courts to

consult the Guidelines”). In this case, for example, the district

court sentenced Staten by applying the “substantial risk of

harm” Guidelines enhancement based on facts not admitted

by Staten in her plea but rather found by the court at the sentencing hearing, based on post-plea submission of evidence

and expert testimony. On remand the court may determine to

do so again if the requisite facts are established. 

Our prior case law concerning a heightened standard of

review in limited circumstances for facts determinative of the

UNITED STATES v. STATEN 10529
sentence applies precisely to those situations in which the

facts found actually are determinative of the sentence given.

In United States v. Restrepo, for example, we held that generally “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,” 946 F.2d 654, 661 (9th Cir. 1991) (en banc), but

recognized that an exception to this general rule might be

required “when a sentencing factor has an extremely disproportionate effect on the sentence relative to the offense of

conviction,” id. at 659; see also Jordan, 256 F.3d at 930 (“It

is now settled that when a sentencing factor has an extremely

disproportionate impact on the sentence relative to the offense

of conviction, due process requires that the government prove

the facts underlying the enhancement by clear and convincing

evidence.”). Neither of these explanations of the heightened

standard nor any other of which we are aware turns on

whether the district court’s determination to impose an

enhancement based on certain facts was discretionary or mandatory, but simply on the consideration that the factual finding

was, as it turned out, actually determinative. 

Indeed, our heightened standard on sentencing due process

jurisprudence traces back to a case, United States v. Kikumura, in which the reliance on disputed facts to greatly

increase a sentence was discretionary rather than mandatory.

918 F.2d 1084 (3d Cir. 1990);7see Valensia, 222 F.3d at 1179

(discussing Kikumura); Restrepo, 946 F.2d at 656 n.1 (discussing Kikumura). Kikumura concerned a sentence that

departed upward by many years from the mandatory Guidelines sentence, in the exercising of the district court’s discretion to do so. 918 F.2d at 1097-98; see Koon v. United States,

518 U.S. 81, 92 (1996) (noting district court authority to exer7A Third Circuit panel recently overruled Kikumura, but the panel’s

opinion has been withdrawn and en banc review granted. See United

States v. Grier, 449 F.3d 558, 570 (3d Cir. 2006), withdrawn & reh’g en

banc granted, 453 F.3d 554 (3d Cir. 2006). 

10530 UNITED STATES v. STATEN
cise discretion and depart from Guidelines); United States v.

Menyweather, 447 F.3d 625, 630 (9th Cir. 2006) (noting that

discretionary nature of district court’s authority to depart from

Guidelines). The Third Circuit explained in Kikumura that

while “less procedural protection is so clearly appropriate in

the majority of sentencing cases,” where the enhancement

represents the overwhelming proportion of the punishment

imposed, “a court cannot reflexively apply the truncated procedures that are perfectly adequate for all of the more mundane, familiar sentencing determinations.” 918 F.2d at 1100-

01; see id. at 1099 (“Though long recognized as a practical

necessity, real offense sentencing can create the potential for

significant unfairness. This is so because every factual consideration deemed relevant for sentencing purposes must be

established through a collateral, post-verdict adjudication at

which the applicable procedural protections are significantly

lower than those applicable at the trial itself.”). To accommodate these concerns, the Third Circuit crafted a resolution,

adopted by this circuit, under which a district court is required

to “ratchet up certain, though not necessarily all, of the procedural protections afforded a defendant at sentencing, so as

more closely to resemble those afforded at trial,” by applying

the clear and convincing evidence standard to sentencing factors that disproportionately impact the overall sentence. Id. at

1101. 

As noted, our prior clear and convincing evidence sentencing case law, like Kikumura, focused on the actual effect a

given fact had on the sentence that the district court ultimately

imposed, not on whether the district court was required to

give a fact it found the effect it did. Additionally, we have

continued, after Booker, to impose the preponderance of the

evidence standard, as a general baseline, “[to] resolve factual

disputes at sentencing.” Kilby, 443 F.3d at 1140. This continued practice confirms that, as one would expect, due process

continues to play a critical role with regard to the factual

determinations inherent in criminal sentencing; otherwise, no

standard of proof whatever would be necessary. And because

UNITED STATES v. STATEN 10531
facts found by the district court may still have an actual disproportionate impact on the sentence ultimately imposed, the

due process concerns which animated our adoption of the

clear and convincing standard in such limited instances have

not evaporated. 

[10] In short, neither the holdings nor the reasoning of our

prior case law concerning heightened burdens of proof at sentencing are irreconcilable with Booker. We hold, accordingly,

that this circuit’s established rule, requiring facts found in

support of Guidelines enhancements that turn out to have a

disproportionate impact on the ultimate sentence imposed to

be established by clear and convincing evidence, continues to

govern sentencing decisions. On remand, therefore, if the

application of section 2D1.1(b)(5)(B) again has a disproportionate impact on Staten’s ultimate sentence as determined in

accord with existing case law, the enhancement must be supported by facts established by clear and convincing evidence.

IV.

[11] We vacate the imposed sentence and remand to the

district court for resentencing in order that it have the opportunity to consider whether the section 2D1.1(b)(5)(B)

enhancement is applicable in light of Note 20(A). 

VACATED and REMANDED.

10532 UNITED STATES v. STATEN