Opinion
Argued and Submitted May 17, 2001.
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Appeal from the United States District Court for the District of Nevada David Warner Hagen, District Judge, Presiding.
Before HUG and T.G. NELSON, Circuit Judges, and PREGERSON, District Judge.
Honorable Dean D. Pregerson, United States District Court Judge for the Central District of California.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.
The district court did not clearly err in determining that the losses associated with some of the TRW reports and Giwa's arrests in Hawaii and California constituted relevant conduct. Nor was it error for the district court not to apply Section 2X1.1's three-level decrease. That section applies to attempted offenses, and Giwa's offenses were complete when he fraudulently obtained the cards and information through the mail. We vacate Giwa's sentence and remand, however, because we hold that a preponderance of the evidence does not
United States v. Hahn, 960 F.2d 903, 907 (9th Cir.1992).
United States Sentencing Commission, Guidelines Manual, § 2X1.1.
See United States v. Blitz, 151 F.3d 1002, 1011 (9th Cir.1998).
See United States v. Scheele, 231 F.3d 492, 497 (9th Cir.2000) ("The district court's factual findings in the sentencing phase are reviewed for clear error, but must be supported by a preponderance of the evidence.").
Page 547.
support the district court's conclusion that Giwa attempted to buy two, rather than one, Rolex watches in Hawaii. Because $23,427 of the district court's actual and attempted loss figure is not adequately supported, the court should remove this amount from the total actual and attempted loss figure and resentence Giwa accordingly.
VACATED AND REMANDED.