United States District Court, D. Oregon
OPINION AND ORDER
Michael H. Simon, District Judge.
parties dispute the correct advisory sentencing guidelines
range for Defendant Ryan Griffin under the United States
Sentencing Guidelines (“U.S.S.G.”). This Opinion
and Order resolves that dispute.
United States Sentencing Guidelines
begins with a properly calculated advisory sentencing
guidelines range. Gall v. United States, 552 U.S.
38, 39 (2007); United States v. Carty, 520 F.3d 984,
991 (9th Cir. 2008). The advisory sentencing guidelines serve
as the initial benchmark in every sentencing proceeding,
Gall, 552 U.S. at 39, and “reflect a rough
approximation of sentences that might achieve §
3553(a)'s objectives.” United States v.
Rita, 551 U.S. 338, 350 (2007). The sentencing table in
the guidelines presents a defendant's offense level in
the vertical axis and a defendant's criminal history
category in the horizontal axis. Both the offense level and
the criminal history category must be correctly calculated,
and the intersection yields the advisory guidelines range.
After calculating the advisory guidelines range, the Court
must consider that range, along with all of the other
sentencing factors listed in 18 U.S.C. § 3553(a) before
arriving at a final sentence.
U.S.S.G. directs that the court consider all “relevant
conduct” when evaluating the nature and circumstances
of the offense to determine the correct offense level.
U.S.S.G. § 1B1.3. The U.S.S.G. defines “relevant
conduct, ” in part, as follows:
Relevant Conduct (Factors that Determine the Guideline
(a) Chapters Two (Offense Conduct) and Three (Adjustments).
Unless otherwise specified, (i) the base offense level where
the guideline specifies more than one base offense level,
(ii) specific offense characteristics and (iii) cross
references in Chapter Two, and (iv) adjustments in Chapter
Three, shall be determined on the basis of the following:
(1) (A) all acts and omissions committed, aided,
abetted, counseled, commanded, induced, procured, or
willfully caused by the defendant; and
(B) * * *
that occurred during the commission of the offense of
conviction, in preparation for that offense, or in the
course of attempting to avoid detection or responsibility for
(2) * * *
(3) all harm that resulted from the acts and omissions
specified in subsections (a)(1) and (a)(2) above,
and all harm that was the object of such acts and
(4) * * *
U.S.S.G. § 1B1.3(a) (emphasis added). In addition, the
United States Sentencing Commission provides the following
Commentary for this subsection: “Conduct that is not
formally charged or is not an element of the offense of
conviction may enter into the determination of the
applicable guideline sentencing range.” U.S.S.G.
§1B1.3, comment. (background) (emphasis added).
Standard of Proof
courts generally use the preponderance of the evidence
standard of proof when finding facts at sentencing, such as
the amount of loss caused by a fraud. The higher ‘clear
and convincing' standard may apply, however, when a
sentencing factor has an extremely disproportionate
effect on the sentence relative to the offense of
conviction.” United States v. Hymas, 780 F.3d
1285, 1289 (9th Cir. 2015) (emphasis added) (citations and
quotation marks omitted).
Evidence that May Be Considered
Federal Rules of Evidence do not apply in a sentencing
proceeding. Fed.R.Evid. 1101(d)(3) (“These rules-except
for those on privilege-do not apply to . . .
sentencing”). As noted by the United States Supreme
Court, “18 U.S.C. § 3661 . . . codifies the
longstanding principle that sentencing courts have broad
discretion to consider various kinds of information.”
United States v. Watts, 519 U.S. 148, 151 (1997).
That statute provides:
No limitation shall be placed on the information concerning
the background, character, and conduct of a person convicted
of an offense which a court of the United States may receive
and consider for ...