51 F. App'x 219

SKOPIL, J.,
concurring in part, dissenting in part.
I agree with the majority that the district court committed plain error by sentencing Huihui for relevant conduct based on a preponderance of evidence rather than clear and convincing evidence. I part with the majority’s determination, however, that no reversible error occurred because “it appears that the enhancement could have been proven by clear and convincing evidence.” In my view, the majority’s decision to weigh the evidence conflicts with an important and fundamental responsibility of the district court. In pri- or decisions, we have remanded for the district court “to determine whether the evidence is clear and convincing....” See, e.g., United States v. Jordan, 256 F.3d 922, 933 (9th Cir.2001). We explained that “we are not in a position to weigh conflicting evidence, which is an important responsibility of the district court....” Id. Similarly, in United States v. Munoz, 233 F.3d 1117, 1127 (9th Cir.2000), we remanded to permit the district court to apply the correct evidentiary standard, noting that such a determination “is within the province of the district court to decide.”
Moreover, the majority reaches its conclusion by impermissibly relying on Hui-hui’s failure to rebut evidence presented at trial. The majority states that: “Huihui does not offer a reason for his retention of the truck with the food stamp container in it ... and no evidence that he ever turned it over at the Lihue airport. The evidence and trial testimony establish that the food stamp container was last seen in Huihui’s possession.” These statements are based on a review of trial proceedings, where Huihui had no burden to testify or offer evidence. We have frequently warned that no adverse inference can be drawn from a defendant’s failure to testify and that by doing so even at sentencing, a court impermissibly shifts the burden of proof. See e.g., United States v. Mezas de Jesus, 217 F.3d 638, 644-45 (9th Cir.2000).
I would reverse and remand for resen-tencing.

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