                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       NOV 16 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    16-50137

                Plaintiff-Appellee,
                                                D.C. No.
 v.                                             2:10-cr-00813-SVW-1

EUGENE DARRYL TEMKIN,
                                                MEMORANDUM*
                Defendant-Appellant.

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

                      Argued and Submitted October 2, 2017
                              Pasadena, California

Before: RAWLINSON and N.R. SMITH, Circuit Judges, and KORMAN,**
District Judge.

      Eugene Temkin was convicted principally of murder for hire in violation of

18 U.S.C. § 1958(a), and he was sentenced initially to 72 months’ incarceration.

See United States v. Temkin, 797 F.3d 682, 686–88 (9th Cir. 2015). The sentence



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
was vacated on appeal because of an error in the calculation of the Sentencing

Guidelines. See id. at 692–96. Temkin was then resentenced to 144 months, based

on the new range of 210–262 months that we found applicable, see id. at 695 &

n.5, and on new findings regarding Temkin’s post-conviction conduct. On this

appeal, Temkin argues that the district court erred by not expressly applying the

“clear and convincing” standard to its factual findings at resentencing. We affirm.

      As a general rule, a district court’s factual findings at sentencing need only

be established by a preponderance of the evidence. See, e.g., United States v.

Hymas, 780 F.3d 1285, 1289 (9th Cir. 2015). We have recognized an exception to

this rule “when a sentencing factor has an extremely disproportionate effect on the

sentence relative to the offense of conviction.” Id. (quoting United States v. Mezas

de Jesus, 217 F.3d 638, 642 (9th Cir. 2000)). In such scenarios, we have applied

the “higher clear and convincing standard.” Id.

      However, we have applied this exception “only in the case of federal

guideline sentencing enhancements.”1 United States v. Felix, 561 F.3d 1036, 1046


      1
              The Government argues that, because the Guidelines have been
advisory since United States v. Booker, 543 U.S. 220, 227 (2005), we should
abandon the “disproportionate effect” exception entirely. We have, however,
expressly held “that the clear and convincing standard still pertains post-Booker for
an enhancement applied by the district court that has an extremely disproportionate
effect on the sentence imposed.” United States v. Staten, 466 F.3d 708, 718 (9th
Cir. 2006). Contrary to the Government’s argument, Beckles v. United States,
137 S. Ct. 886 (2017), does not justify overruling Staten. Beckles just held that “the
advisory Sentencing Guidelines are not subject to a vagueness challenge under the

                                          2                                    16-50137
(9th Cir. 2009) (quoting United States v. Dare, 425 F.3d 634, 642 (9th Cir. 2005)).

Indeed, when asked to extend the exception beyond Guidelines enhancements, we

have refused to do so. See, e.g., United States v. Collins, 684 F.3d 873, 889 (9th

Cir. 2012). Here, the challenged findings did not trigger any Guidelines

enhancements. Rather, they influenced the extent to which the district court

downwardly departed from the Guidelines. The “disproportionate effect”

exception, therefore, does not apply here.

      Moreover, even if it did, the findings regarding Temkin’s post-conviction

conduct while incarcerated at FCI Terminal Island did not have a disproportionate

effect on his sentence. Originally, the district court sentenced Temkin to 72

months––40.5% below the low end (121 months) of his initial Guidelines range. At

resentencing, taking the Terminal Island findings into consideration, the district

court sentenced Temkin to 144 months––31.4% below the low end (210 months)

of the higher, recalculated range. To the extent the Terminal Island findings

affected or “enhanced” Temkin’s sentence, they seemingly did so by resulting in a

downward departure of only 31.4% and not 40.5%.2


Due Process Clause,” and it expressly did “not render the advisory Guidelines
immune from constitutional scrutiny.” Id. at 895. Beckles thus does not foreclose
our ability “to satisfy due process concerns” by sometimes requiring a heightened
standard of proof. Staten, 466 F.3d at 717.
      2
            Temkin argues that the Terminal Island findings “enhanced” his
sentence by 72 months. However, in increasing the sentence by that amount, the

                                          3                                     16-50137
      This was not disproportionate. In determining what constitutes a

disproportionate effect on a sentence, we look to the “totality of the circumstances”

and apply a six-factor test first articulated in United States v. Valensia, 222 F.3d

1173, 1182 (9th Cir. 2000), cert. granted and judgment vacated on other grounds,

532 U.S. 901 (2001). E.g., United States v. Pike, 473 F.3d 1053, 1057 (9th Cir.

2007). We are satisfied that Temkin’s sentence was not disproportionate under that

test, but we need not engage in a discussion of the Valensia factors because clear

and convincing proof did support the district court’s finding.

      To meet the clear and convincing standard, “a party must present sufficient

evidence to produce ‘in the ultimate factfinder an abiding conviction that the truth

of its factual contentions are [sic] highly probable.’” Sophanthavong v. Palmateer,

378 F.3d 859, 866 (9th Cir. 2004) (quoting Colorado v. New Mexico, 467 U.S.

310, 316 (1984)). Here, overwhelming evidence supported the district court’s

finding that Temkin, while incarcerated at Terminal Island, attempted to recruit a

fellow inmate in a plan to extort and possibly murder Michael Hershman and his

associates. The government provided a sheet of paper that Temkin gave to the

inmate, containing Hershman’s email addresses, along with the names of his




district court not only considered the Terminal Island findings but also that we had
increased the Guidelines range from 121–151 to 210–262 months. Therefore, the
findings alone did not result in the 72-month increase.

                                           4                                    16-50137
children, in-laws, friends, business associates, and casinos. The evidence also

consisted of a recorded conversation between Temkin and the inmate, in which

Temkin made several statements suggesting he believed he was recruiting the

inmate to extort and murder Hershman and others. Even more damning: the FBI

provided the inmate with false contact information for “a purported Russian

hitman,” which the inmate relayed to Temkin. Around a month later, the inmate

told the FBI that Temkin had mailed to the “hitman” photocopies of the driver’s

licenses of Hershman, Hershman’s wife, and another person, as well as the

passport photos of Hershman’s wife and daughter. Soon thereafter, those

documents arrived at the P.O. Box the FBI had provided. And finally, there was a

transcript of a phone call that Temkin made to the “Russian hitman,” in which

Temkin stated “I’ve been trying to get ahold of you for some time” and

“[e]verything else should be available to you with a little research and uh a bit of

understanding as to things, and, as they transpired.” This record provides “clear

and convincing” evidence that Temkin, while at Terminal Island, actively

attempted to arrange for the extortion and death of Hershman.3


             AFFIRMED.


      3
             To the extent that this discussion of the events at Terminal Island
discloses information from sealed portions of the record, we unseal those portions
of the record for the limited purpose of referencing the events discussed in this
disposition.

                                          5                                    16-50137
