a sentencing enhancement factor becomes "a tail which wags the dog of the substantive offenses” the clear and convincing standard might apply); United States v. Restrepo, 946 F.2d 654, 659 (9th Cir.1991) (en banc) (observing that "the Supreme Court has recognized that due process protects a defendant's interest in fair sentencing, hut has emphasized in the same cases that the interest is not defined as a liberty interest in a sentence below the statutory maximum,” and leaving for another day the issue of whether a standard of proof higher than the general rule of preponderance of evidence would be necessary where the tail wags the dog of the substantive offense), cert. denied, 503 U.S. 961, 112 S.Ct. 1564, 118 L.Ed.2d 211 (1992); United States v. Lombard, 72 F.3d 170 (1st Cir.1995) (<HOLDING>); United States v. Kikumura, 918 F.2d 1084 (3rd
holding that the district court erred in imposing an enhancement under the  5k20 departure provision where an enhancement under the separate guidelines provision for restraining a victim during the course of an offense would have been appropriate holding that district court had authority to grant section 5k20 downward departure despite governments opposition holding where the statutory minimum sentence exceeds the guidelines sentence a substantialassistance downward departure begins at the mandatory minimum sentence holding that where it was clear that the court of appeals had limited the issues on resentencing to the one issue raised in the defendants first appeal the district court did not err in declining to consider other issues raised by the defendant on remand holding that where mandatory life sentence enhancement was the tail which wags the dog of defendants firearm conviction which raised constitutional due process issues the district court had authority to consider a downward departure under section 5k20 of the guidelines