Unpublished Disposition, 863 F.2d 887 (9th Cir. 1988)

MEMORANDUM^* 

David Kirk Stewart argues that the trial court deprived him of his due process rights or erred as a matter of policy in finding "by a preponderance of the evidence" at a sentencing hearing, that Stewart was in possession of a gun during the commission of a crime. Stewart also argues that there was not sufficient evidence to sustain the finding by a preponderance, even if that standard applied.

In reliance upon McMillan v. Pennsylvania, 477 U.S. 79 (1986), United States v. Lee, 818 F.2d 1052 (2d Cir.), cert. denied, 108 S. Ct. 350 (1987); Jones v. United States, 783 F.2d 1477 (9th Cir. 1986), and United States v. Weston, 448 F.2d 626 (9th Cir. 1971), cert. denied, 404 U.S. 1061 (1972), we held in United States v. Augustino Fernandez-Videna, 857 F.2d 673 (9th Cir. 1988) that a determination in a sentencing hearing by a preponderance of the evidence does not violate due process. We refused to require a higher standard as a matter of policy. Even if we agree with the concurring opinion that a higher standard may be required in certain situations, such a standard would not apply under the facts at issue.

The trial court's finding that Stewart was carrying a gun was not clearly erroneous under a preponderance of the evidence standard. In an interrogation after his arrest, Stewart admitted that he was armed during the drug deal. This confession was partially corroborated by the testimony of a police officer and physical evidence from the crime scene. The trial court suggested that its decision probably would have been the same under a "beyond a reasonable doubt standard."

AFFIRMED.