Unpublished Disposition, 878 F.2d 387 (9th Cir. 1989)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.Pantaleon PEREZ-PEREIRA, Defendant-Appellant.

No. 88-5008.

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.


MEMORANDUM** 

Pantaleon Perez-Pereira appeals his sentence he received after pleading guilty to conspiring to commit drug trafficking offenses in violation of 21 U.S.C. § 846. Perez-Pereira contends that the district court judge violated his due process rights by failing to find beyond a reasonable doubt that challenged statements in his presentence report were true. We affirm.

In McMillan v. Pennsylvania, 447 U.S. 79, 91 (1986), the Supreme Court rejected a due process challenge to a state statute that prescribed a preponderance of the evidence standard for determining facts relating to sentencing. The Court noted that " [s]entencing courts have traditionally heard evidence and found facts without any prescribed burden of proof at all." Id. In light of McMillan, 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. Accordingly, the district court did not deprive Perez-Pereira of due process by applying the clear and convincing evidence standard for determining facts relating to his sentencing. See id.

AFFIRMED.

 *

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