United States of America, Plaintiff-appellee, v. Arthur Lee Duran, Defendant-appellant, 33 F.3d 60 (9th Cir. 1994)

MEMORANDUM^** 

Arthur Lee Duran appeals his sentence of twenty-one months imposed after he pleaded guilty to two counts of aiding and abetting the sale of stolen motor vehicles in violation of 18 U.S.C. §§ 2, 2313. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

Duran asks the court to reconsider its en banc ruling in United States v. Restrepo, 946 F.2d 654, 661 (9th Cir. 1991) (en banc), cert. denied, 112 S. Ct. 1564 (1992), in which we held that, as a general matter, a preponderance of the evidence standard of proof for sentencing factors satisfies due process. We decline. See United States v. Lucas, 963 F.2d 243, 247 (9th Cir. 1992) (a three-judge panel cannot overrule Ninth Circuit precedent). Moreover, the sentencing factor at issue--Duran's involvement in three additional sales of stolen backhoes worth $60,000--increased Duran's sentence by three months; therefore, it did not have an extremely disproportionate impact that might require a higher standard of proof. See Restrepo, 946 F.2d at 659-61 (a finding at sentencing that increased defendant's sentence by twelve to twenty months did not require a higher standard of proof); see also United States v. Galliano, 977 F.2d 1350, 1353-54 (9th Cir. 1992) (sentencing court properly included the amount of loss incurred from uncharged counts that were part of defendant's common scheme), cert. denied, 113 S. Ct. 1399 (1993).

AFFIRMED.