UNITED STATES of America, Plaintiff-Appellee, v. Joey CLARK, Defendant-Appellant, 452 F.3d 1082

BETTY B. FLETCHER, Circuit Judge: Joey Clark appeals his 46-month sentence for unlawful possession of a firearm. He asserts that the district court violated United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), by failing to treat the United States Sentencing Guidelines (“Sentencing Guidelines” or “Guidelines”) as advisory; applied the Guidelines 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 arguments raised by Clark in this appeal. BACKGROUND On April 30, 2003, North Las Vegas police executed a traffic stop of an automobile moving at a high speed.

Appellant Joey Clark, a passenger in the car, was asked to exit the vehicle, 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 discovered 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 firearms under 18 U.S.C. § 924(a)(2).

The indictment specifically alleged that Clark “knowingly possessed a] ... handgun, with an obliterated serial number.” Clark pleaded guilty to the charges in the indictment without a plea agreement and submitted objections to the Pre-Sen-tence Report, arguing that it would be error to assign a two-level increase for possessing a weapon with an obliterated serial number. He repeated those objections at the sentencing 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 hearing 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 reasonable 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 making a more productive life, but eventually determined that “as a person who had a felony conviction, you don’t have the 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 sufficiently 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 obviously 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 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 demonstrated both an awareness of, and compliance with, the remedial aspect of Booker. Clark’s argument that his sentence is “unreasonable” under Booker also fails. “In determining whether a sentence 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 circumstances 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 Guidelines; (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 vocational 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 -1 keep them written down, so I don’t forget them.” The court balanced these concerns against the purpose of deterring future crimes. In sum, the district court conducted a thorough sentencing 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 determination is eminently “reasonable” under Booker.

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 be made beyond a reasonable doubt. But, “[sjtanding 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 constitutional 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.

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 factor 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 number, 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 re-sentencing so that the court can make the appropriate determination. Sentence VACATED and REMANDED for resentencing. Because Clark has almost finished serving his sentence, the mandate shall issue forthwith.