UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 22-50064

Plaintiff-Appellee, D.C. No. 8:21-cr-00017- v. JVS-1 FRANCISCO LUCAS, Jr., AKA Choko, AKA Francisco Lucas, OPINION

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California James V. Selna, District Judge, Presiding

Argued and Submitted En Banc January 23, 2024 Pasadena, California

Filed May 2, 2024 Before: Mary H. Murguia, Chief Judge, and Kim McLane Wardlaw, Johnnie B. Rawlinson, Consuelo M. Callahan, Sandra S. Ikuta, Morgan Christen, Mark J. Bennett, Bridget S. Bade, Kenneth K. Lee, Lucy H. Koh and Holly A. Thomas, Circuit Judges.

Opinion by Chief Judge Murguia 2 USA V. LUCAS

SUMMARY*

Criminal Law

Vacating a sentence and remanding, the en banc court held that clear and convincing evidence is not required for factual findings under the advisory Sentencing Guidelines, even when potentially large enhancements are at stake; fact- finding by a preponderance of the evidence is sufficient to satisfy due process at sentencing. The en banc court therefore overruled United States v. Staten, 466 F.3d 708 (9th Cir. 2006), and its progeny. The en banc court remanded for the district court to apply the proper standard in the first instance.

COUNSEL Bram M. Alden (argued), Assistant United States Attorney, Criminal Appeals Section Chief; Bradley E. Marrett, Assistant United States Attorney, Santa Ana Branch Office; Stephanie S. Christensen, Acting United States Attorney; E. Martin Estrada, United States Attorney; United States Department of Justice, Office of the United States Attorney; for Plaintiff-Appellee. Sonam A.H. Henderson (argued), Deputy Federal Public Defender; Cuauhtemoc Ortega, Federal Public Defender;

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. USA V. LUCAS 3

Federal Public Defender’s Office, Los Angeles, California; for Defendant-Appellant. Jessica Agatstein and Vincent Brunkow, Federal Defenders of San Diego Inc., San Diego, California, for Amici Curiae Ninth Circuit Federal Public and Community Defenders.

OPINION MURGUIA, Chief Judge:

We voted to rehear this case en banc to reconsider our heightened standard of proof for factual findings at sentencing. Under this standard, we have long required trial courts to make factual findings by clear and convincing evidence “when a sentencing factor has an extremely disproportionate effect on the sentence relative to the conviction.” United States v. Staten, 466 F.3d 708, 717 (9th Cir. 2006) (quoting United States v. Lynch, 437 F.3d 902, 916 (9th Cir. 2006) (en banc) (per curiam)). On rehearing en banc, we overrule our prior precedent and fully adopt the “preponderance of the evidence” standard. We remand this case for the district court to apply the proper standard in the first instance. I Francisco Lucas, Jr., was previously convicted of two felonies under state law in California. While Lucas was on probation in late 2020, law enforcement searched his cell phone and found photographs and videos that appeared to depict Lucas in his home with a firearm and magazine. Lucas was indicted for and pleaded guilty to a single count 4 USA V. LUCAS

of illegal possession of a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). At sentencing, the main issue was whether to apply a heightened base offense level, which tu