Unpublished Disposition, 878 F.2d 387 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 878 F.2d 387 (9th Cir. 1989)

UNITED STATES OF AMERICA, Plaintiff-Appellee,v.Clara Inez VELEZ, Defendant-Appellant.

No. 88-5013.

United States Court of Appeals, Ninth Circuit.

Submitted June 21, 1989.* Decided June 23, 1989.

Alicemarie H. Stotler, District Judge, Presiding.

Before HUG, SCHROEDER and LEAVY, Circuit Judges.


Clara Inez Velez appeals the district court's partial denial of her motion challenging factual statements in her presentence report and her sentence she received after pleading guilty to drug trafficking charges in violation of 18 U.S.C. §§ 1952 and 2, and 21 U.S.C. § 846. Velez contends the district court judge violated her due process rights by not articulating the standard of proof she applied to determine facts relating to Velez's sentencing, and by failing to find beyond a reasonable doubt that a challenged statement in her presentence report was true. We affirm.

We have never required district courts to articulate the standard of proof they apply when finding facts relating to sentencing. Nor does Fed. R. Crim. P. 32 require such a pronouncement. Indeed, " [s]entencing courts have traditionally heard evidence and found facts without any prescribed burden of proof at all." McMillan v. Pennsylvania, 447 U.S. 79, 91 (1986). Thus, any failure to articulate the standard of proof applied in Velez's sentencing proceeding did not violate Velez's due process rights. Having said this much, we note that the district court indicated it was applying the clear and convincing standard to find that Velez had prior knowledge that her husband, codefendant Perez-Pereira, was going to murder Oscar Gonzalez and that she and her husband had disposed of their inventory of cocaine in anticipation of the killing.1 

Velez's second contention, that the court erred by failing to apply the beyond a reasonable doubt standard to make its sentencing findings, is also without merit. We recently held in United States v. Fernandez-Vidana, 857 F.2d 673, 675 (9th Cir. 1988), that the preponderance of the evidence standard was sufficient for determining facts in federal sentencing proceedings. The district court based its finding that Velez had prior knowledge of and planned for Gonzalez's murder on the testimony of Agent Diaz. Although his testimony was challenged by Velez, the court found that Velez had not been candid nor truthful with the court in many respects. We will not interfere with "the trial judge's broad discretion to decide not only the relevance but the reliability of sentencing information." Jones v. United States, 783 F.2d 1477, 1481 (9th Cir. 1986). Because the court found that it was more likely than not, if not clear, that Velez had participated in the planning of Gonzalez's murder, we decline to vacate Velez's sentence of imprisonment. See Fernandez-Vidana, 857 F.2d at 675; Walker v. Endell, 850 F.2d 470, 477 (9th Cir. 1988) (minimum factual basis supported court's consideration of murder charges of which defendant had been acquitted).



The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Circuit R. 36-3


The district court expressly stated at Velez's and Perez-Pereira's joint Rule 32 hearing that it was using the clear and convincing standard in ruling on Perez-Pereira's objections. Thus, it is reasonable to infer that the court also applied the clear and convincing test to its subsequent resolution of defendant's objections. This inference is bolstered by the district court's statement at the conclusion of the hearing regarding defendant's objections to the presentence report: "It is clear to me that [Velez] knew about the need to eliminate Oscar Gonzalez."