Unpublished Disposition, 894 F.2d 410 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 894 F.2d 410 (9th Cir. 1990)

UNITED STATES Of America, Plaintiff-Appellee,v.GIENGER ENTERPRISES, INC., Defendant-Appellant.

No. 89-30069.

United States Court of Appeals, Ninth Circuit.

Submitted Jan. 11, 1990.* Decided Jan. 22, 1990.

Before EUGENE A. WRIGHT, TANG and CANBY, Circuit Judges.


MEMORANDUM** 

Gienger Enterprises ("Gienger") appeals the district court's order to pay $100,000 in fines for the illegal cutting of timber. We affirm.

DISCUSSION

Gienger argues that the district court erred when it concluded that the value of the timber Gienger took from the North Willow, Lake and Shaw areas warranted a $50,000 fine.

"We review the legality of a criminal sentence de novo." United States v. Pomazi, 851 F.2d 244, 247 (9th Cir. 1988). "Sentencing that falls within statutory limits,however, is left to the sound discretion of the district court and is reviewed for an abuse of discretion." Id. A sentencing court's findings of fact are reviewed for clear error. See United States v. Restrepo, 884 F.2d 1294, 1295 (9th Cir. 1989).

We conclude that the district court did not abuse its discretion when it imposed a $50,000 fine for the value of the timber lost in the North Willow, Lake and Shaw timber areas. The district court's finding that a preponderance of the evidence supported this fine was not clear error. For the North Willow and Lake timber areas, the government's evidence indicated that Gienger systematically bypassed the scales used to determine the value of the timber cut. The government's evidence suggested that Gienger's bypassing of the scales in those two areas might have produced losses as high as $183,000. For the Shaw timber area, the government's evidence indicated that over 2,000 trees had been falsely marked for cutting, or cut without the appropriate mark. The government estimated that these lost trees had a value of $50,000.

All together, then, the government's evidence suggested that $223,000 of timber had been lost. The district court reduced this figure to $50,000 to take into account the imprecision of the estimates. We see nothing in the record to warrant further discounting of the government's evidence. We see no clear error in the $50,000 fine.

Gienger contends that the district court erred when it imposed a $50,000 fine based on the loss created by the lower resale value of the Shaw timber area.

We conclude that the district court did not abuse its discretion when it imposed a $50,000 fine for the lower value of the Shaw timber area upon resale. The district court's finding that a preponderance of the evidence supported this fine was not clear error. The value of the Shaw timber area declined in large part because Gienger had removed the superior quality timber. The district court did discount the government's claim of $153,000 to take into account the extent to which the government failed to mitigate damages. We find no evidence in the record to indicate clear error in the district court's decision not to reduce the government's estimate further.1 

AFFIRMED.

 *

The panel unanimously agrees that this case is appropriate for submission without oral argument. Fed. R. App. P. 34(a); 9th Cir. 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 Cir.R. 36-3

 1

We also reject Gienger's claim that a number of items should have been excluded from evidence. The evidentiary standards at a sentencing hearing are lower than those present at trial. For example, hearsay may be used unless it is "so inadequately supported that 'the factual basis for believing [it is] almost nil.' " United States v. Fernandez-Vidana, 857 F.2d 673, 675 (9th Cir. 1988) (quoting United States v. Weston, 448 F.2d 626, 633 (9th Cir. 1971), cert. denied, 404 U.S. 1061 (1972)). Consequently, we are unwilling to say the district court should have excluded evidence on the basis that it had not been identified by an in-court witness