United States v. Francis McLain, 709 F.3d 1198

McLain was convicted of failing to account for and pay employment taxes under 26 U.S.C. § 7202.
Initially sentenced to 48 months and $75,000 fine; on direct appeal, conviction affirmed but sentence vacated and remanded for resentencing on the existing record.
On remand, court addressed the loss-amount issue under guidelines; district court found no violation of § 7206(2) but treated related conduct as criminal for loss amount because of waivers and other tax provisions.
The loss amount determination shifted the guideline range from 41–51 to 33–41 months; after considering post-sentencing conduct, district court imposed 55 months.
On appeal, McLain contends improper departure consideration, due-process challenges to standards at sentencing, and substantive unreasonableness; court affirms.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Did the district court err by not considering a traditional departure?	McLain argues departure applicability was ignored.	McLain asserts district court should have considered upward/downward departure.	No error; court consulted counsel and did not fail to consider departures.
Did the district court apply an improper standard of proof at sentencing?	McLain challenges the use of a preponderance standard.	Government argues no improper standard and issues fall under § 3553(a).	Precedent rejects applying a higher standard at sentencing; argument fails.
Is the sentence substantively reasonable under § 3553(a)?	McLain contends the 55-month sentence is unreasonable.	District court properly weighed factors, including post-sentencing conduct and risk of recidivism.	No abuse of discretion; post-sentencing conduct justified the sentence.

United States v. Villareal-Amarillas, 562 F.3d 892 (8th Cir. 2009) (preponderance-of-evidence standard not valid at sentencing in ordinary cases)
United States v. Spencer, 700 F.3d 317 (8th Cir. 2012) (standard-of-review for § 3553(a) determinations; abuse-of-discretion review)