United States v. Anthony MacKlin , 440 F. App'x 543 ( 2011 )

FILED
NOT FOR PUBLICATION JUN 27 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-10431
Plaintiff - Appellee, D.C. No. 2:95-cr-00258-LDG
v.
MEMORANDUM *
ANTHONY MACKLIN,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
Lloyd D. George, District Judge, Presiding
Submitted June 15, 2011 **
Before: CANBY, O’SCANNLAIN, and FISHER, Circuit Judges.
Anthony Macklin appeals from the district court’s order denying his 18
U.S.C. § 3582(c)(2) motion for reduction of sentence. We have jurisdiction under
28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Macklin contends that the district court violated his Sixth Amendment right
to due process and U.S.S.G. § 6A1.3, by considering prison disciplinary findings
when denying his 18 U.S.C. § 3582(c)(2) motion because the conduct was
contested and not proven by a preponderance of the evidence. Assuming that the
Government was required to meet this burden, the record reflects that the burden
was met. See generally United States v. Dare, 425 F.3d 634, 642 (9th Cir. 2005)
(recognizing that, “[a]s a general rule, the preponderance of the evidence standard
is the appropriate standard for factual findings used for sentencing”).
AFFIRMED.
2 09-10431