#### UNITED STATES of America, Appellee, v. Phillip MUIR, AKA Zeeks, Defendant-Appellant.

17-150

United States Court of Appeals, Second Circuit.

February 9, 2018

Appearing for Appellant: Karloff Cylton Commissiong, Adams & Commissiong LLP, New York, N.Y.

Appearing for Appellee: Robert Allen, Assistant United States Attorney (Diane Gujarati, Assistant United States Attorney, on the brief), for Geoffrey S. Berman, Interim United States Attorney, Southern District of New York, New York, N.Y.

Present: ROSEMARY S. POOLER, ROBERT D. SACK, Circuit Judges. PAUL A. ENGELMAYER,1 District Judge.

1

. Judge Paul A. Engelmayer, United States District Court for the Southern District of New York, sitting by designation.

Appellant Phillip Muir appeals from the January 9, 2017 judgment of the United States District Court for the Southern District of New York (Berman, /.), sentencing Muir principally to 200 months in prison for offenses related to firearms and drug trafficking. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review.

Muir argues that the district court’s use of uncharged and acquitted conduct at sentencing violated the Due Process and Double Jeopardy Clauses of the Fifth Amendment, and the Sixth Amendment’s guarantee of trial by jury. We have previously rejected these same arguments. *See United States v. Vaughn,*430 F.3d 518, 527 (2d Cir. 2005) (“[Djistrict courts may find facts relevant to sentencing by a preponderance of the evidence, even where the jury acquitted the defendant of that conduct, as long as the judge does not impose (1) a sentence in the belief that the Guidelines are mandatory, (2) a sentence that exceeds the statutory maximum authorized by the jury verdict, or .(3) a mandatory minimum sentence under [the applicable statute] not authorized by the verdict.”); *see also United States v. Ulbricht, 858*F.3d 71, 128 (2d Cir. 2017) (“A district court may consider as part of its sentencing determination uncharged conduct proven by a preponderance of the evidence as long as that conduct does not increase either the statutory minimum or *511maximum available punishment.”). Though these questions continue to raise some constitutional controversy, *see, e.g., United States v. Lasley,*832 F.3d 910, 921 (8th Cir. 2016), *cert. denied,*— U.S. —, 137 S.Ct 823, 196 L.Ed.2d 608 (2017) (Bright, *J.,*dissenting) (collecting cases), they are squarely settled by our previous decisions. Accordingly, Muir’s arguments are foreclosed by circuit precedent.

Muir also argues that the use of acquitted conduct violates principles of collateral estoppel. However, this argument is derivative of the Fifth Amendment .Double Jeopardy argument. *See Dowling v. United States,*493 U.S. 342, 347, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990) (“[T]he Double Jeopardy Clause incorporates the doctrine of collateral estoppel.”). Given the higher burden of proof at trial than at sentencing, collateral estoppel does not bar the use of acquitted conduct in sentencing. *See Cobb v. Pozzi,*363 F.3d 89, 114 (2d Cir. 2004) (“[A] difference in the burdens of proof in two proceedings can make the application of collateral estoppel improper ... A litigant’s failure to meet a higher burden of proof on an issue in a prior proceeding does not bar him from raising the same issue in a subsequent proceeding in which his burden will be lighter.”) (quoting *Purdy v. Zeldes,*337 F.3d 253, 259 (2d Cir. 2003)) (internal quotation marks omitted).

Muir further argues- that the district court erred by finding that the government had proved the uncharged or acquitted conduct by a preponderance of the evidence. “A district court’s factual findings at sentencing need be supported only by a preponderance of the evidence, and such findings may be overturned only if they are clearly erroneous.” *United States v. Ryan,*806 F.3d 691, 694 (2d Cir. 2015) (quoting *United States v. Gonzalez,*647 F.3d 41, 62 (2d Cir. 2011)).

Muir attacks the credibility of several witnesses, largely by asserting that they provided self-serving or illogical testimony. However, given that “assessing the credibility of witnesses is distinctly the province of the district court,” and that a court’s “factual findings based on the testimony of witnesses [are] entitled to special deference,” we see no basis for upsetting the district court’s factual findings on appeal. *United States v. Beverly,*5 F.3d 633, 642 (2d Cir. 1993).

We have considered the remainder of Muir’s arguments and find them to be without merit. Accordingly, the order of the district court hereby is AFFIRMED. Each side to bear its own costs.