“Hi Grandma, this is your grandson. I’m calling you from Bolivia. I’ve had a terrible accident and I need your help. Please send me some money so I can get medical treatment and come home to you.”

This is not an actual conversation, but it is similar to what a Canadian telemarketer used to con over 80 elderly Americans out of over $500,000 between 2011 and 2012. At sentencing, District Court Judge Cormac Carney commented that he might not have seen a fraud case that was “so cruel and heartless” as the one perpetrated by the defendant.

Defendant Kelen Magael Buchan was charged with 25 counts of wire fraud and attempted wire fraud. As part of a plea agreement, he pled guilty to a single count of wire fraud. Carney calculated the sentencing range based upon the facts underlying the case and used a “preponderance of evidence” standard for the determination of the facts. However, he then went below the calculated sentencing range in the Sentencing Guidelines and sentenced Buchan to 51 months in prison.

Nonetheless, Buchan appealed, seeking reversal of his 51-month sentence. He claimed Carney used the wrong evidentiary standard to determine the underlying facts that led to the calculation of the sentencing range and asserted that the court should have used a “clear and convincing” evidentiary standard.

The Ninth Circuit unanimously rejected his appeal and affirmed both the conviction and sentence on October 27, although the panel differed as to how far they should go in addressing the evidentiary standard. All agreed that Carney had used the incorrect standard because Ninth Circuit law required the use of the “clear and convincing” standard. However, they found that any error was harmless and affirmed.

The opinion stated, “Even if the district court erred…it would have reached the same conclusion, and this conclusion is not clearly erroneous.” It then went into detail about the evidence that included “scheme-related materials” in Buchan’s bedroom. These included cell phone messages that compared Buchan’s voice with recordings made in prison. The district court found “the entire scheme was attributable to Buchan” and met legal and case law tests that showed he engaged in criminal activity.

The opinion further stated that the district court did not err in applying both a 12-level upward adjustment and another 3-level sentencing adjustment, because of what the court termed his “managerial” role in the scheme that was shown by his cellphone recordings. Buchan’s co-defendants received lighter sentences because they were not managers.

In concurrence, Circuit Judge Ryan D. Nelson would have gone further and actually changed the standard to allow the use of the “preponderance of evidence” standard Carney used, asserting that the Ninth Circuit’s “clear and convincing” standard was no longer a necessary due process protection now that the Sentencing Guidelines are no longer mandatory, but discretionary.

Nelson asserted that the clear and convincing evidence rule should no longer apply because it “is incorrect, unmoored from its original basis in…the Guidelines, and contrary to the law of every other circuit.” He said the clear and convincing standard should be applied only when the factual findings presented at sentencing “have an extremely disproportionate effect on the ultimate sentence.”

He then turned to his reasoning and explained that a case that involved “over a half-million dollars taken from senior citizens and their life savings and their retirement” was, to him “so horrible that gang-on-gang violence to me is more understandable than something like this.”

Because judges now have more discretion under the Sentencing Guidelines as a result of Supreme Court rulings subsequent to the Ninth Circuit setting the evidentiary standard, the higher standard is no longer necessary. “Now that the Guidelines are advisory, district courts have discretion to sentence anywhere within the entire statutory range, full stop,” Nelson wrote.

Therefore, Nelson reasoned, the facts related at sentencing cannot logically lead to a sentence that is “extremely disproportionate relative to the mandatory sentence that would be imposed absent the factual findings because there are no longer mandatory guidelines. Rather, the only mandatory range is the statutory range. The reasoning of the clear and convincing evidence rule rested on the mandatory guidelines. That is why every other circuit got rid of it. We should follow suit, en banc if necessary.”

Circuit Judge Sandra Ikuta joined the section of the concurrence suggesting en banc review.

The Court also held that Memorandum opinion was not appropriate for publication and is not precedent.