United States v. Sael Mustafa, 2012 U.S. App. LEXIS 19966

Mustafa pleaded guilty to aiding and abetting mail fraud under 18 U.S.C. §§ 1341 and 2.
The district court sentenced Mustafa to 120 months’ imprisonment.
Mustafa appealed, arguing the district court applied the wrong standard (preponderance vs. clear and convincing) to sentencing-relevant conduct.
The PSR set a base offense level of 7 under § 2B1.1(a)(1) and recommended seven enhancements based on Mustafa’s relevant conduct.
Evidence at an April 2011 hearing showed Mustafa used computer access to obtain customers’ personal information and to access credit and debit accounts, leading to further fraudulent transfers, gift cards, and airline tickets.
At a second sentencing hearing, the court relied on a preponderance standard to support the enhancements, resulting in an advisory range of 168–210 months and a downward variance to 120 months.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether sentencing enhancements based on relevant conduct require clear-and-convincing proof.	Mustafa argues for clear-and-convincing standard.	Government relies on preponderance of the evidence.	Preponderance standard governing sentencing facts is proper.

United States v. Lee, 625 F.3d 1030 (8th Cir. 2010) (due process permits the preponderance standard for sentencing facts with limited due process impact)
United States v. Villareal-Amarillas, 562 F.3d 892 (8th Cir. 2009) (preponderance standard applicable to sentencing enhancements)
United States v. Watts, 519 U.S. 148 (1997) (sentencing enhancements do not punish for unconvicted crimes; increasing sentence for manner of offense)
United States v. McKanry, 628 F.3d 1010 (8th Cir. 2011) (district court may base loss on conduct supported by preponderance evidence even if acquitted/uncharged)
United States v. Booker, 543 U.S. 220 (2005) (Guidelines advisory; sentencing fact-finding not limited by preponderance standard)