United States v. Eugene Temkin, 16-50137

Background

Temkin was convicted of murder-for-hire under 18 U.S.C. § 1958 and originally sentenced to 72 months; that sentence was vacated on appeal for a Guidelines-calculation error.
On remand the Guidelines range was recalculated higher (210–262 months vs. prior 121–151), and Temkin was resentenced to 144 months based on the new range and findings about his post-conviction conduct at FCI Terminal Island.
The district court found Temkin attempted to recruit an inmate to extort and possibly murder Michael Hershman and associates while incarcerated; evidence included a paper with identifying information, recorded conversations, mailed documents, and a phone call to a purported hitman.
Temkin challenged the resentencing on appeal, arguing the district court erred by not expressly applying the “clear and convincing” standard to the Terminal Island factual findings.
The Ninth Circuit considered whether the heightened proof standard applies outside the context of Guidelines enhancements and whether the Terminal Island findings had an extremely disproportionate effect on the sentence.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether district court had to apply clear-and-convincing standard at resentencing	Temkin: district court should have expressly applied clear-and-convincing to post-conviction factual findings	Government: preponderance suffices; Guidelines advisory so exception unnecessary	Court: Generally preponderance; clear-and-convincing only applies in narrow circumstances but here not required; affirm.
Whether the "disproportionate effect" exception extends beyond Guidelines enhancements	Temkin: exception should apply because findings greatly affected sentence	Government: exception limited to Guideline enhancements; post-Booker advisory Guidelines negate need	Court: Exception historically limited to Guideline enhancements; not extended here.
Whether Terminal Island findings had an "extremely disproportionate" effect on sentence	Temkin: the findings increased sentence by 72 months and thus were disproportionate	Government: resentencing reflected both new Guidelines range and conduct; findings did not produce disproportionate enhancement	Court: Findings were not disproportionate under totality; percent below range changed from 40.5% to 31.4%; not extreme.
Whether evidence met clear-and-convincing standard (if applied)	Temkin: evidence insufficient under heightened standard	Government: record contains overwhelming evidence of recruitment/attempted extortion/murder plots	Court: Even under clear-and-convincing, evidence (paper, recordings, mailed documents, phone call) was sufficient.

Key Cases Cited

United States v. Hymas, 780 F.3d 1285 (9th Cir. 2015) (preponderance standard for sentencing findings; exception noted)
United States v. Mezas de Jesus, 217 F.3d 638 (9th Cir. 2000) (articulating disproportionate-effect basis for heightened proof)
United States v. Felix, 561 F.3d 1036 (9th Cir. 2009) (limiting disproportionate-effect exception to Guidelines enhancements)
United States v. Dare, 425 F.3d 634 (9th Cir. 2005) (same limitation discussion)
United States v. Collins, 684 F.3d 873 (9th Cir. 2012) (refusing to extend exception beyond Guidelines enhancements)
United States v. Valensia, 222 F.3d 1173 (9th Cir. 2000) (six-factor test for assessing disproportionate effect)
United States v. Pike, 473 F.3d 1053 (9th Cir. 2007) (applying Valensia totality approach)
Sophanthavong v. Palmateer, 378 F.3d 859 (9th Cir. 2004) (definition of clear-and-convincing standard)
Colorado v. New Mexico, 467 U.S. 310 (1984) (clear-and-convincing formulation cited)
United States v. Staten, 466 F.3d 708 (9th Cir. 2006) (post-Booker recognition that clear-and-convincing can still apply)
Booker v. United States, 543 U.S. 220 (2005) (advisory Guidelines framework)
Beckles v. United States, 137 S. Ct. 886 (2017) (advisory Guidelines and vagueness ruling; does not eliminate due-process concerns)