Unpublished Disposition, 900 F.2d 263 (9th Cir. 1990)

MEMORANDUM^** 

Lahaie asserts two due process challenges. First, she contends that the guidelines are unconstitutional because they provide no standard of proof, or permit a standard less than "beyond a reasonable doubt," for factors determining the sentencing range. We recently interpreted the guidelines to require the district court to apply a preponderance of the evidence standard in making factual determinations relevant to sentencing. United States v. Wilson, No. 89-50236 slip op. (9th Cir. April 6, 1990). In Wilson, we expressly rejected the argument that this standard of proof violates the due process clause. For the reasons stated in Wilson we reject Lahaie's first argument.

Lahaie's second argument is that the guidelines violate her right to have individual mitigating factors considered in determining her sentence. We have previously rejected this argument. See United States v. Brady, slip. op. (9th Cir. Jan. 30, 1990). The guidelines limit a sentencing judge's discretion but sentencing "under the guidelines continues to be highly 'individualized.' " Id. at 1010 (quoting United States v. Seluk, 873 F.2d 15, 17 (1st Cir. 1989). The guidelines consider numerous individual factors including the defendant' criminal history, role in the crime, acceptance of responsibility and other considerations focusing on the individual. See U.S.S.G. Sec. 1B1.1. Moreover, once the guidelines sentencing range has been determined, a district judge may consider any information "concerning the background, character and conduct of the defendant" in setting the exact sentence. U.S.S.G. Sec. 1B1.4; 18 U.S.C. § 3661. The sentencing under the guidelines is sufficiently individualized to satisfy due process.

The guidelines are also valid as applied. Lahaie argues that her alcoholic condition and psychological disorder were not considered in determining her sentence. This contention, however, is contradicted by the transcript of the sentencing hearing. The sentencing judge considered these factors in deciding against departing upward from the guideline range and in imposing the lowest sentence permitted within the applicable range. As applied, the guidelines did not unconstitutionally limit the district court's discretion to impose an individualized sentence.

The district court added fourteen offense level points for committing the offense in a manner that "recklessly endangered the safety of another." See U.S.S.G. Sec. 2K1.4(b) (2). Lahaie argues that she was not reckless because she was not "conscious" of the risk to others from setting the fire. We review the district court's finding of recklessness under a clearly erroneous standard.

Section 2K1.4 does not define "recklessly." Although not determinative to this section, the guidelines state that a defendant is "reckless" in the manslaughter context as if he is

aware of the risk created by his conduct and the risk was of such a nature and degree that to disregard that risk constituted a gross deviation from the standard of care that a reasonable person would exercise in such a situation.

U.S.S.G. Sec. 2A1.4. Application Note 1. Lahaie argued a similar definition during the sentencing hearing.

Lahie conceded that a danger to others resulted from the act of arson, but argued that she should receive only a four point addition for conduct that "endangered the safety of another" without regard to mens rea. See U.S.S.G. Sec. 2K1.4(b) (5). The district court heard these arguments but imposed the fourteen point addition, noting that the fire was extremely dangerous, late at night in a residence, and endangered neighboring occupants. The court noted that Lahie was being given the "benefit of the doubt" that the offense did not deserve an 18 point increase ("knowingly creat [ing] a substantial risk" of harm). The court's conclusion represents an implicit finding that Lahie acted with awareness that others might be endangered by her conduct.

Having carefully reviewed the record, we cannot say that the district court's finding was clearly erroneous. The circumstances of Lahaie's offense fully support the district court's conclusion that she was aware that the fire might endanger the safety of others. Setting the fire at a time when most people would be sleeping, knowing that the building might be occupied, strongly supports the inference that Lahaie was aware that her actions risked the safety of others. Nothing in the record rebuts this conclusion.

Affirmed.