Unpublished Disposition, 927 F.2d 612 (9th Cir. 1991)

MEMORANDUM^** 

Estela Ruiz appeals her increased sentence under section 4B1.3 of the Sentencing Guidelines, which increases the base offense level if the defendant derives a substantial portion of her income from criminal activity. We affirm.

* Ruiz was arrested after an investigation yielded evidence that she had sold fraudulent employment verification documents to numerous aliens. Ruiz pled guilty to one count of violating 8 U.S.C. § 1160(b) (7) (A) (ii) by supplying the false employment verification forms.

The presentence report recommended enhancing Ruiz's sentence under section 4B1.3 of the Guidelines because she derived a substantial portion of her income from her sale of the fraudulent documents. Ruiz objected to the report's statement that a substantial portion of her income was derived from illegal activity. At a hearing on her objections, she presented evidence that the money in the bank accounts had been pooled by her neighbors for the cost of drilling a well. The judge found this evidence unpersuasive and increased Ruiz's offense level under section 4B1.3. She appeals the increase, arguing there was no reliable evidence to support it.

II

While we review de novo the district court's interpretation of the Sentencing Guidelines, United States v. Howard, 894 F.2d 1085, 1087 (9th Cir. 1990), we review for clear error the determination that the defendant derived a substantial portion of her income from criminal activity. United States v. Munster-Ramirez, 888 F.2d 1267, 1269 (9th Cir. 1989), cert. denied, --- U.S. ----, 110 S. Ct. 1951 (1990).

III

Ruiz argues the government failed to prove facts supporting the increased offense level under section 4B1.3, which provides:

If the defendant committed an offense as part of a pattern of criminal conduct from which he derived a substantial portion of his income, his offense level shall be not less than 13, unless [acceptance of responsibility] applies, in which event his offense level shall be not less than 11.

U.S.S.G. Sec. 4B1.3 (1988). In determining whether section 4B1.3 is applicable, "the sentencing court must determine a defendant's income and then determine what percentage or proportion of his income is derived from criminal activity." Munster-Ramirez, 888 F.2d at 1270. The government bears the burden of proving, by a preponderance of the evidence, the facts necessary to enhance a defendant's offense level. Howard, 894 F.2d at 1089-90.

The evidence before the district court supported the conclusion that Ruiz was active in selling fraudulent documents. Although she was allegedly employed as an agricultural worker at $5 per hour, at the time of her arrest Ruiz had cash and bank accounts totalling over $16,000. Several of the aliens told the investigator that they had paid $1,250 for each set of documents. In the plea agreement, Ruiz admitted to selling the false employment verification forms to "numerous" aliens. Because there was evidence indicating both that Ruiz had sold documents to numerous people for $1,250 per set, and that her legitimate income was very small, the district court's finding that she derived a substantial portion of her income from her illegal activities was not clearly erroneous.

IV

Ruiz also argues that the government had the burden of producing additional evidence after she objected to the presentence report, relying on United States v. Lemon, 723 F.2d 922 (D.C. Cir. 1983). Her reliance on Lemon is misplaced. Lemon does not impose an automatic burden on the government to produce additional evidence, but instead discusses the need for corroborating evidence. The court advocates a flexible approach in requiring corroborating evidence, noting that "the requirements of due process in the context of a challenge to the accuracy of information to be used in sentencing cannot be reduced to a simple formula." Id. at 935.

The Lemon court also commented that "the statements of an unidentified informant, otherwise of dubious value, may be useful if corroborated by additional means." Id. In the present case, the court had before it many pieces of evidence which corroborated the informants' statements, and supported the finding that Ruiz derived substantial income from her sales of fraudulent documents. There was no necessity to require further substantiation.

AFFIRMED.