                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                  No. 05-10480
                Plaintiff-Appellee,
               v.                            D.C. No.
                                          CR-03-00214-PMP
JOEY CLARK,
                                             OPINION
             Defendant-Appellant.
                                      
       Appeal from the United States District Court
                 for the District of Nevada
       Philip M. Pro, Chief District Judge, Presiding

                 Argued and Submitted
         May 19, 2006—San Francisco, California

                     Filed July 5, 2006

       Before: Betty B. Fletcher, Alex Kozinski, and
           Raymond C. Fisher, Circuit Judges.

              Opinion by Judge B. Fletcher;
              Concurrence by Judge Kozinski




                           7367
7370                UNITED STATES v. CLARK


                          COUNSEL

Mario D. Valencia, Henderson, Nevada, for the appellant.

Daniel G. Bogden and Robert L. Ellman (argued), U.S.
Department of Justice, Las Vegas, Nevada, for the appellee.


                          OPINION

B. FLETCHER, Circuit Judge:

   Joey Clark appeals his 46-month sentence for unlawful pos-
session of a firearm. He asserts that the district court violated
United States v. Booker, 543 U.S. 220 (2005), by failing to
treat the United States Sentencing Guidelines (“Sentencing
Guidelines” or “Guidelines”) as advisory; applied the Guide-
lines in an unreasonable manner; and erroneously found facts
that should have been sent to a jury and/or proved beyond a
reasonable doubt — or failed to adequately make any factual
finding whatsoever. We have jurisdiction pursuant to, inter
alia, 18 U.S.C. § 3742, and we review the sentence as a whole
for reasonableness. United States v. Plouffe, 445 F.3d 1126,
1131 (9th Cir. 2006).

   We remand for resentencing on the sole ground that we
cannot determine whether the district court made any factual
finding to support a two-level enhancement for carrying a gun
with an obliterated serial number. We reject all other argu-
ments raised by Clark in this appeal.

                      BACKGROUND

   On April 30, 2003, North Las Vegas police executed a traf-
fic stop of an automobile moving at a high speed. Appellant
                    UNITED STATES v. CLARK                  7371
Joey Clark, a passenger in the car, was asked to exit the vehi-
cle, and police officers noticed he was wearing a bullet-proof
vest. Clark tried to flee; a struggle ensued; and a handgun fell
from Clark’s pants and landed on the ground. Police then dis-
covered a second gun in Clark’s possession.

   Clark had a previous conviction for possessing a controlled
substance with intent to sell, and a federal grand jury returned
an indictment charging Clark with unlawful possession of a
firearm under 18 U.S.C. § 922(g)(1) and forfeiture of the fire-
arms under 18 U.S.C. § 924(a)(2). The indictment specifically
alleged that Clark “knowingly possess[ed a] . . . handgun,
with an obliterated serial number.”

   Clark pleaded guilty to the charges in the indictment with-
out a plea agreement and submitted objections to the Pre-
Sentence Report, arguing that it would be error to assign a
two-level increase for possessing a weapon with an obliter-
ated serial number. He repeated those objections at the sen-
tencing hearing, where he also argued that he carried the guns
because his life had been threatened by gangs who believed
he had been involved with another murder.

   The district court noted at the outset of the sentencing hear-
ing that “the guideline calculation is an advisory vehicle now.
It’s not mandatory or binding on the Court, and the Court has
to fashion a reasonable sentence in accord with [18 U.S.C.
§ 3553].” The Court further stated, with regard to the two-
level increase, that “subsequent to Booker and in accord with
the provisions of [18 U.S.C. § 3553] those would be factors
which the Court could also consider in fashioning a reason-
able sentence.” The court restated the advisory nature of the
Guidelines several more times during the hearing.

  The district court acknowledged that Clark had earned his
high-school degree and had likely “turned a corner” in mak-
ing a more productive life, but eventually determined that “as
a person who had a felony conviction, you don’t have the
7372               UNITED STATES v. CLARK
right to carry a gun.” The court expressed sympathy for
Clark’s expressed fear of retaliation but ultimately decided
that Clark’s possession of two loaded firearms and his attempt
to wrest away from a police officer made Clark’s conduct suf-
ficiently dangerous to warrant the two-level enhancement:

       All of these factors, everything I have heard —
    and I am giving credit to things that were said by
    your former attorney [from a previous trial in which
    Clark was acquitted] because I think she has some
    insight into you — by your father who also obvi-
    ously does and your attorney and by you yourself
    suggest to me that, probably, there’s merit in taking
    somewhat of a chance in fashioning a sentence in
    your case.

       But to give the kind of sentence that [your present
    attorney] very ably argues for would be to ignore the
    seriousness of your conduct and would also provide
    very little deterrent to other people out there who
    might engage in similar conduct.

  The district court decided to stay “within the guideline
range” and sentenced Clark to 46 months, the low end of the
sentence. The court awarded Clark credit for time served.
Judgment was entered on June 27, 2005, and this timely
appeal followed.

                       DISCUSSION

   [1] Clark argues that the district court violated Booker by
treating the Sentencing Guidelines as mandatory. However,
the district court repeatedly cited Booker for the proposition
that the Sentencing Guidelines are now advisory and demon-
strated both an awareness of, and compliance with, the reme-
dial aspect of Booker.

  [2] Clark’s argument that his sentence is “unreasonable”
under Booker also fails. “In determining whether a sentence
                    UNITED STATES v. CLARK                  7373
is unreasonable, we are guided by the sentencing factors set
forth in 18 U.S.C. § 3553(a), including the sentencing range
established by the Sentencing Guidelines.” Plouffe, 445 F.3d
at 1131. These factors include: (1) the nature and circum-
stances of the offense and the history and characteristics of
the defendant; (2) the need for the sentence imposed; (3) the
kinds of sentences available; (4) the kinds of sentences and
the sentencing range established by the Sentencing Guide-
lines; (5) pertinent policy statements issued by the Sentencing
Commission; (6) the need to avoid unwarranted sentencing
disparities among defendants who have similar criminal
records and have been found guilty of similar conduct; and (7)
the need to provide restitution to victims. See 18 U.S.C.
§ 3553(a).

   Clark claims that the district court ignored the purposes and
dictates of § 3553(a), but the record reflects otherwise. The
district court considered the severity of the sentence in light
of Clark’s self defense argument, his desire for better voca-
tional training, his efforts to rehabilitate himself after the
arrest, and his arguments regarding selective enforcement and
a disproportionately long sentence. The court noted, “I do
have to consider the guidelines . . . . And the provisions of [18
U.S.C. §] 3553 set forth a litany of factors . . . and I keep
them written down, so I don’t forget them.” The court bal-
anced these concerns against the purpose of deterring future
crimes.

   [3] In sum, the district court conducted a thorough sentenc-
ing hearing and explained its decision in thorough and careful
detail. It sentenced Clark to the low end of the Guidelines
range, which suggests that it may have credited Clark in light
of the mitigating circumstances mentioned above. Its determi-
nation is eminently “reasonable” under Booker.

  [4] Clark argues that the Sixth Amendment entitles him to
a jury finding on the issue of the obliterated serial number
and/or that the Fifth Amendment requires that such findings
7374               UNITED STATES v. CLARK
be made beyond a reasonable doubt. But, “[s]tanding alone,
judicial consideration of facts and circumstances beyond
those found by a jury or admitted by the defendant does not
violate the Sixth Amendment right to jury trial. A constitu-
tional infirmity arises only when extra-verdict findings are
made in a mandatory guidelines system.” United States v.
Ameline, 409 F.3d 1073, 1077-78 (9th Cir. 2005) (en banc).
Nor is there any requirement that such facts be found beyond
a reasonable doubt. “As a general rule, the preponderance of
the evidence standard is the appropriate standard for factual
findings used for sentencing.” United States v. Dare, 425 F.3d
634, 642 (9th Cir. 2005). Because the two-level enhancement
did not have a “disproportionate effect on [Clark’s] sentence,”
id. (quoting United States v. Hopper, 177 F.3d 824, 833 (9th
Cir. 1999) (internal quotation marks omitted)), application of
the preponderance of the evidence standard was appropriate.

   [5] However, the record is not clear as to whether the court
made any finding regarding the obliterated serial number. The
court stated, “You weren’t charged with any conduct, other
than that of being a felon in possession of a firearm, and one
of those firearms has an obliterated serial number, and a fac-
tor to be considered is your attempt to wrestle away from the
officer at the time you were arrested.” Although we do not
agree with the government counsel that the district court’s
statement was a finding regarding the obliterated serial num-
ber, a majority of the panel finds that it was not unreasonable
for counsel to so interpret it. In the final analysis, however,
we disagree that such a finding was made, and we remand for
resentencing so that the court can make the appropriate deter-
mination.

  Sentence VACATED and REMANDED for resentencing.
Because Clark has almost finished serving his sentence, the
mandate shall issue forthwith.
                    UNITED STATES v. CLARK                  7375
KOZINSKI, Circuit Judge, concurring:

  While I agree with much in the majority opinion, and con-
cur in the result, I cannot agree with my colleagues that “it
was not unreasonable for [government] counsel to so inter-
pret” the district court’s statement as a finding of fact. Maj.
op. at 7374. In fact, no reasonable lawyer would have tried to
pass off the district court’s remark as a finding; government
counsel was trying to pull a fast one.

   To begin with, the district judge did not—and could not
have—found the serial number was obliterated because the
matter was not submitted to him for decision. While the
defendant objected to the PSR’s claim that one of the guns in
Clark’s possession had an obliterated serial number, the on-
the-record colloquy on this matter centered entirely on
whether Clark had admitted that fact when he pleaded guilty.
After hearing from defense counsel, the prosecutor and the
probation officer, the district court overruled the objection,
apparently on the ground that defendant’s admission was
sufficient—a proposition the government does not defend on
appeal. If the district court had also made an independent
finding that the serial number was obliterated, this is the point
in the proceedings where one would expect to see it. But no
evidence was presented to support such a finding and no one
asked the judge to make it. So, of course, he did not.

   Which brings up the second reason why the government’s
claim is patently unreasonable: The statement on which the
government relies was made by the district judge much later
in the proceedings when he explained the basis of his sen-
tence, after the defendant had exercised his right to allocu-
tion. Allocution is the penultimate scene in the sentencing
drama; it is the defendant’s traditional right to plead to the
court for leniency after the legal and factual issues affecting
sentencing have been resolved. United States v. Gunning, 401
F.3d 1145, 1148-49 (9th Cir. 2005) (allocution must be
allowed on remand after new findings of fact). After allocu-
7376                UNITED STATES v. CLARK
tion, the only thing left for the court to do is exercise its sen-
tencing discretion. See Fed. R. Crim. Pro. 32(i)(4)(A)(ii).

   It is unthinkable that a district court would make a finding
of fact at that point in the proceedings, as every criminal law-
yer well understands. Nor is there any reason to suspect that
the careful and experienced district judge upset the expected
order here. After all, he had made his ruling based on what he
believed was defendant’s admission earlier in the proceed-
ings. What possible reason would he have had for making a
factual finding, sua sponte, without a factual record, in the
midst of pronouncing sentence? To articulate the proposition
is to ridicule it.

   Finally, one need only read what the district court actually
said—I mean the full sentence rather than just selected parts
of it—to discard the possibility of any reasonable reliance on
it as a finding. The court didn’t use “I find . . .” or another
suitable synonym. Rather, the judge—in articulating the rea-
sons for his sentence—notes that “[y]ou [Clark] weren’t
charged with any conduct, other than that of being a felon in
possession of a firearm, and one of those firearms has an
obliterated serial number . . . .” Of course, if one quotes only
the underscored portion of the sentence, and leaves out the
introductory language, one might be able to squeeze out a
“finding” by the district court that the serial number was oblit-
erated. But no reasonable lawyer would play doctor with
quotes in this fashion.

   Yet, astonishingly, this is precisely what the government
did. In its brief, the government argued that Clark wasn’t enti-
tled to a jury finding that the serial number was obliterated
because the district court could rely on its own finding to this
effect: “Accordingly, the [jury] claim is moot because under
Booker, the district court could impose any reasonable sen-
tence up to 10 years based on its own finding of sentencing
factors under a preponderance standard.” This “mootness”
argument is necessarily and expressly predicated on the exis-
                    UNITED STATES v. CLARK                    7377
tence of such a finding by the district judge. Unprofessionally,
the government’s brief gives no citation to the record where
the district court made such a finding.

   “Where is the finding?” I—and no doubt my colleagues—
wondered while leafing aimlessly through page after page of
the record in pursuit of support. Not finding anything, the
issue naturally became the subject of questioning at oral argu-
ment:

    Q.   Was there a finding by the district court that the
         serial number was obliterated?

    A.   Yes there was.

    Q.   Tell me where.

    A.   Page 229 of the excerpts of record.

    Q.   What line?

    A.   Oh, excuse me, page 228 of the excerpts of
         record.

    Q.   What line?

    A.   And that’s lines 22 and 23. So there’s actually
         a find—

    Q.   Could you read me the language on which
         you’re relying?

    A.   Yes. Line 22. “One of those firearms has an
         obliterated serial number.” Begins on line 22
         and ends on line 23.

   As the perspicacious reader will already have recognized,
the passage on which government counsel relies is the partial
7378                UNITED STATES v. CLARK
sentence underscored above. Counsel twice attempted to
focus the court’s attention on lines 22 and 23 of the transcript;
yet the court’s full sentence—including the crucial introduc-
tory phrase “[y]ou weren’t charged with any conduct, other
than . . . .”—spans lines 21 to 25. When a member of the
panel pointed out that the sentence merely articulated what
Clark was charged with, counsel insisted:

    A.   I believe it’s a finding . . . .

And again:

    Q.   What the court is saying, “you weren’t charged
         with anything but this.” So what he’s saying is
         “you were charged with this.” I can’t see how
         you can take a piece of a judge’s sentence that
         lists the charges and characterize it as a finding.
         ...

    A.   I have to differ with that, your Honor. I think it
         stands alone . . . .

   I don’t believe that quoting portions of a sentence while
leaving out key qualifiers is reasonable conduct for an attor-
ney of this court. I don’t believe that making assertions in a
brief regarding disputed factual points, without providing a
citation to the record, amounts to reasonable attorney conduct.
I don’t believe that ignoring the context of statements in the
record—the timing, circumstances and purpose—amounts to
reasonable conduct. In short, I don’t believe that it is appro-
priate or reasonable for a lawyer to pluck a few words from
the middle of a sentence and pretend that they say something
very different from what they mean in context. This is true of
every lawyer who appears before us, but it goes doubly for
lawyers who represent the government in criminal cases. See
United States v. Kojayan, 8 F.3d 1315, 1323 (9th Cir. 1993)
(“Prosecutors are subject to constraints and responsibilities
that don’t apply to other lawyers. While lawyers representing
                   UNITED STATES v. CLARK                 7379
private parties may—indeed, must—do everything ethically
permissible to advance their clients’ interests, lawyers repre-
senting the government in criminal cases serve truth and jus-
tice first.” (internal citation omitted)).

   I don’t understand why my colleagues believe that the gov-
ernment’s conduct here was reasonable. I cannot join in the
encomium and thereby encourage government lawyers
appearing before us to try to get away with more of the same.
I therefore respectfully—but decisively—distance myself
from that portion of the majority’s opinion suggesting that
government counsel was reasonable in behaving as he did.
