United States v. Grier

Opinions of the United

2007 Decisions States Court of Appeals

for the Third Circuit

2-5-2007

USA v. Grier

Precedential or Non-Precedential: Precedential

Docket No. 05-1698

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 05-1698

UNITED STATES OF AMERICA

v.

SEAN MICHAEL GRIER,

Appellant

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 03-cr-00284)

District Judge: Honorable Sylvia H. Rambo

Argued En Banc September 13, 2006 *

*

This case was originally argued on October 25, 2005,

before Judges Sloviter, Fisher, and Rosenn. The coram was

reconstituted to include Chief Judge Scirica after the death of

Judge Rosenn. On June 6, 2006, an opinion by a majority of the

original panel was filed, affirming the District Court's legal

conclusions, but remanding for resentencing, directing the

Before: SCIRICA, Chief Judge, SLOVITER,

McKEE, RENDELL, BARRY, AMBRO,

FUENTES, SMITH, FISHER,

CHAGARES and VAN ANTWERPEN,** Circuit Judges.

(Filed February 5, 2007)

Ronald A. Krauss (Argued)

Office of Federal Public Defender

100 Chestnut Street, Suite 306

Harrisburg, PA 17101

Attorney for Appellant,

Sean Michael Grier

Christian A. Fisanick

Office of United States Attorney

235 North Washington Avenue, Suite 311

P.O. Box 309

Scranton, PA 18501

District Court to state more fully its reasons for imposing the

particular sentence. Judge Sloviter filed a dissenting opinion on

the same day. Appellant petitioned for rehearing en banc. The

Court granted the petition and vacated the panel's judgment and

opinion.

**

Following argument, Judge Van Antwerpen took senior

status on October 23, 2006, but continues to take part in this

matter pursuant to Internal Operating Procedure 9.6.4.

2

Theodore B. Smith, III (Argued)

Eric Pfisterer

Kimberly A. Kelly

Office of United States Attorney

228 Walnut Street

220 Federal Building and Courthouse

P.O. Box 11754

Harrisburg, PA 17108

Attorneys for Appellee,

United States of America

Lawrence S. Lustberg

Michael A. Baldassare

Gibbons, Del Deo, Dolan,

Griffinger & Vecchione

One Riverfront Plaza

Newark, NJ 07102-5497

Attorneys for Amicus-Appellant,

National Association of Federal

Defenders and National Association

of Criminal Defense Lawyers

OPINION OF THE COURT

3

FISHER, Circuit Judge.

The Supreme Court held in United States v. Booker, 543

U.S. 220 (2005), that facts relevant to the advisory United States

Sentencing Guidelines need not be submitted to a jury. We now

confirm that these facts likewise do not require proof beyond a

reasonable doubt.

I.

It all started with a lost bicycle. The bike was owned by

Juan Navarro but had been commandeered by his sister. She

was holding it, with the support of her boyfriend, Sean Michael

Grier, as a form of security against Navarro’s promise to pay a

cable bill. Navarro did not approve of this arrangement.

He confronted Grier and demanded the bike. Grier

refused. Navarro said: “[T]here’s gonna be some problems if

I don’t have my bike back.” Grier responded: “[L]et the

problem be right here and now.”

Navarro swung at Grier. The punch did not connect, and

the two men fell struggling to the ground. Several witnesses

warned Navarro that Grier had a gun. A shot was fired. When

the two men separated, Grier was holding a gun. Neither had

been struck by the bullet or sustained serious injury.

Grier pointed the gun at Navarro. Navarro attempted to

rush at Grier but was held back by other individuals. Grier

pointed the gun upward and fired a single shot. Both men then

left the scene. Grier discarded the firearm in a nearby trash can.

A police investigation ensued. Officers found the

discarded gun, and a background check revealed that it had been

4

stolen. Grier was soon arrested on state charges of aggravated

assault, receiving stolen property, and unlawful possession of a

firearm. These counts were dismissed in August 2003.

Grier was subsequently charged by federal indictment

with possession of a firearm by a convicted felon, in violation of

18 U.S.C. § 922(g)(1), and possession of a stolen firearm, in

violation of 18 U.S.C. § 922(j). He pled guilty to the first count;

the second count was dismissed pursuant to a plea agreement.

A presentence report was prepared. It assessed a four-

level enhancement pursuant to § 2K2.1(b)(5) as Grier used the

firearm in connection with another felony offense,1 namely an

aggravated assault under Pennsylvania law. See 18 Pa. Cons.

Stat. § 2702.2 This finding resulted in a four-level enhancement

1

Application note 4 to U.S.S.G. § 2K2.1(b)(5) explains

that the four-level enhancement for using the firearm in

connection with another felony offense may be assessed

“whether or not a criminal charge was brought, or conviction

obtained.” U.S. Sentencing Guidelines Manual § 2K2.1(b)(5)

cmt. n.4.

2

Pennsylvania law defines aggravated assault as follows:

A person is guilty of aggravated assault if he:

(1) attempts to cause serious bodily

injury to another, or causes such

injury intentionally, knowingly or

recklessly under circumstances

manifesting extreme indifference to

the value of human life; [or]

5

in Grier’s offense level under the United States Sentencing

Guidelines, raising it from 23 to 27, see U.S. Sentencing

Guidelines Manual § 2K2.1(b)(5), and a fifty percent increase

in the recommended imprisonment range, raising it from 84 to

105 months to 120 to 150 months, see id. ch. 5, pt. A. The final

Guidelines range, in light of the statutory maximum sentence of

ten years, see 18 U.S.C. § 924(a)(2), was 120 months. See U.S.

Sentencing Guidelines Manual § 5G1.1.

Grier objected to the four-level enhancement, and a

sentencing hearing was held on February 25, 2005. The parties

argued briefly over the correct burden of proof. Defense

counsel claimed that the reasonable-doubt standard should apply

while counsel for the government maintained that a

preponderance standard should govern. The District Judge

agreed with the government: “I believe that the standard

currently is preponderance, [and] until [I have] something more

definitive from the Court of Appeals, it’s what I’ll use.”

The only witness to testify at the hearing was Navarro.

He described the altercation and stated that he had not possessed

a firearm or any other weapon on his person at the time. He

admitted, however, that he had not seen Grier “pull” the gun

from his clothing:

...

(4) attempts to cause or

intentionally or knowingly causes

bodily injury to another with a

deadly weapon . . . .

18 Pa. Cons. Stat. § 2702(a).

6

I don’t know if the gun fell out [of Grier’s

pockets] or whatever. People was telling me that

he was taking the gun out. And from there, that’s

when everybody tried to get the gun away from

him.

Defense counsel argued that the enhancement should not

apply because Grier had acted in self-defense. She also asserted

that, under Pennsylvania law, Grier was guilty not of aggravated

assault but of “simple assault by mutual consent,” a lesser-

graded version of simple assault punishable by imprisonment for

one year or less. See 18 Pa. Cons. Stat. §§ 1104, 2701.3 This

3

Pennsylvania law defines simple assault, including the

exception for mutual consent, as follows:

(a) Offense defined.–A person is guilty of assault

if he:

(1) attempts to cause or

inten tio n a lly, know ingly or

recklessly causes bodily injury to

another;

(2) negligently causes bodily injury

to another with a deadly weapon;

[or]

(3) attempts by physical menace to

put another in fear of imminent

serious bodily injury . . . .

(b) Grading.–Simple assault is a misdemeanor of

the second degree unless committed . . . in a fight

or scuffle entered into by mutual consent, in

7

crime is not considered a “felony” under the Guidelines, see

U.S. Sentencing Guidelines Manual § 2K2.1 cmt. n.1, and

would not support the enhancement.

The District Court adopted the presentence report,

including the finding of aggravated assault and concomitant

enhancement. It also granted a downward departure of two

offense levels “in light of [Navarro’s] conduct, which was partly

responsible for the four[-]point enhancement.” With this

departure, the range of imprisonment prescribed by the

Guidelines was reduced to 100 to 120 months.

The District Court recognized that the Guidelines were

advisory but nevertheless imposed a term of imprisonment of

100 months, within the recommended range. It justified this

sentence in a single statement: “The Court believes that 100

months is reasonable in view of the considerations of [18 U.S.C.

§] 3553(a).” Defense counsel did not object to the District

Court’s explanation for the sentence.

This timely appeal followed. Grier argues that the

District Court erred in applying a preponderance standard to

facts relevant to the four-level enhancement, in finding that he

had committed aggravated assault under Pennsylvania law, and

in imposing sentence without fully articulating its consideration

of the factors under 18 U.S.C. § 3553(a). We have jurisdiction

over these claims under 18 U.S.C. § 3742(a) and 28 U.S.C.

which case it is a misdemeanor of the third degree

....

18 Pa. Cons. Stat. § 2701.

8

§ 1291. See United States v. Cooper, 437 F.3d 324, 327 (3d Cir.

2006).

II.

There is no doubt that Booker, by rendering the United

States Sentencing Guidelines advisory rather than mandatory,

“brought about sweeping changes in the realm of federal

sentencing.” United States v. Davis, 407 F.3d 162, 163 (3d Cir.

2005). But there is every reason to believe that the Supreme

Court intended that the practices that have guided us and other

courts in the twenty years since the Guidelines were first

promulgated would continue to govern sentencing in the federal

courts.

Under an advisory Guidelines scheme, district courts

should continue to make factual findings by a preponderance of

the evidence and courts of appeals should continue to review

those findings for clear error. The only change in the equation

is that, at the end of the day, the district court is not bound by

the recommended Guidelines range, but must impose a sentence

based on all the factors articulated in § 3553(a). The court of

appeals must then decide whether that final sentence is

“reasonable.”

A.

The primary issue in this case is whether the Due Process

Clause requires facts relevant to enhancements under the United

States Sentencing Guidelines, particularly those that constitute

a “separate offense” under governing law, to be proved beyond

a reasonable doubt. The Supreme Court did not reach this issue

in Booker, see 543 U.S. at 259, and we declined to address it in

9

Cooper, 437 F.3d at 330 & n.7. Nevertheless, we believe that

the discussion in Booker regarding the Jury Trial Clause of the

Sixth Amendment applies with equal force to the Due Process

Clause of the Fifth Amendment. See Apprendi v. New Jersey,

530 U.S. 466, 484 (2000) (discussing these “associated”

provisions). Once a jury has found a defendant guilty of each

element of an offense beyond a reasonable doubt, he has been

constitutionally deprived of his liberty and may be sentenced up

to the maximum sentence authorized under the United States

Code without additional findings beyond a reasonable doubt.

1.

The constitutional guarantees of “trial . . . by an impartial

jury,” U.S. Const. amend. VI, and “due process of law,” U.S.

Const. amend. V, stand as a bulwark of individual liberty. They

interpose between the legislature and the court the community’s

own judgment as to the existence of a crime. Only if a jury of

an individual’s peers concludes beyond a reasonable doubt that

he or she committed each element of the charged offense, as

defined by the legislature, may the court impose punishment.

Booker, 543 U.S. at 230 (citing United States v. Gaudin, 515

U.S. 506, 511 (1995)).

This principle is rooted in common law considerations of

fundamental fairness. See, e.g., Blakely v. Washington, 542 U.S.

296, 301-02, 305-07, 311-12 (2004); Apprendi, 530 U.S. at 476-

77; Harris v. United States, 536 U.S. 545, 556-68 (2002)

(plurality opinion). Individuals must be provided notice of the

consequences of their conduct. They must be informed of the

nature of illegal acts, through legislative definition of the

elements of punishable crimes, and of the possible sentences for

10

those offenses upon conviction. See Blakely, 542 U.S. at 301-

02, 306-07, 311-12; Apprendi, 530 U.S. at 476-77, 489-94;

Harris, 536 U.S. at 556-68. Under the Fifth and Sixth

Amendments, individuals have a right to demand that each and

every element of the alleged crime be submitted to a jury and

proved beyond a reasonable doubt before sentence is imposed.

It follows, then, that the fundamental question for these

purposes is what facts constitute the “elements” of a “crime.”

The answer was provided in Apprendi: the facts

constituting the elements of a crime are those that increase the

maximum punishment to which the defendant is exposed under

governing law. Apprendi, 530 U.S. at 490. This conclusion was

based on a simple syllogism. A crime is defined as conduct that

is punishable by the state. Conduct is punishable by the state

when it exposes the individual to new or additional penalties.

Therefore, any conduct that exposes an individual to punishment

or increases the maximum punishment to which he or she is

otherwise exposed must be deemed a crime. The predicate facts

of such conduct constitute the “elements” of the “crime.” Id. at

483 & n.10 (citing Jones v. United States, 526 U.S. 227, 244-48

(1999)); see also id. at 500-01 (Thomas, J., concurring).

It is to these facts, and to these facts alone, that the rights

to a jury trial and proof beyond a reasonable doubt attach. “The

Fifth and Sixth Amendments ensure that the defendant ‘will

never get more punishment than he bargained for when he did

the crime,’ but they do not promise that he will receive

‘anything less’ than that.” Harris, 536 U.S. at 566 (quoting

Apprendi, 530 U.S. at 498 (Scalia, J., concurring)). Once an

individual has been convicted by a jury beyond a reasonable

doubt of the predicate facts of illegal conduct, triggering a

11

statutory maximum penalty, a court may impose any sentence on

the individual up to that maximum. Id.

Judicial factfinding in the course of selecting a sentence

within the permissible range does not offend the Fifth and Sixth

Amendment rights to a jury trial and proof beyond a reasonable

doubt. Harris, 536 U.S. at 556-68; Apprendi, 530 U.S. at 481-

82 (citing Williams v. New York, 337 U.S. 241, 242-47 (1949));

McMillan v. Pennsylvania, 477 U.S. 79, 89-90 (1986). An

individual who is provided such notice and is nevertheless found

by a jury beyond a reasonable doubt to have engaged in illegal

conduct has no grounds to complain when the maximum

punishment authorized by the legislature is meted out by a

judge. See Blakely, 542 U.S. at 304-05, 309; Harris, 536 U.S.

at 556-68. As the Supreme Court stated in McMillan, “[o]nce

the reasonable-doubt standard has been applied to obtain a valid

conviction, ‘the criminal defendant has been constitutionally

deprived of his liberty to the extent that the state may confine

him[,]’” in this case, the maximum allowed under Title 18 of the

United States Code. McMillan, 477 U.S. at 92 n.8 (quoting

Meachum v. Fano, 427 U.S. 215, 224 (1976)).

2.

The decision in Booker instantiates these principles. In

Booker, a jury found the defendant guilty of possession with

intent to distribute at least fifty grams of cocaine base, an

offense that carried a maximum sentence of life imprisonment

under the United States Code. 543 U.S. at 227 (citing 21 U.S.C.

§ 841(a)(1), (b)(1)(a)(iii)). The United States Sentencing

Guidelines, however, prescribed a base imprisonment range of

210 to 262 months. Id. (citing U.S. Sentencing Guidelines

12

Manual §§ 2D1.1(c)(4), 4A1.1). During a sentencing hearing,

the trial judge found by a preponderance of the evidence that the

defendant had possessed an additional 566 grams of cocaine

base and had obstructed justice. Id. These findings increased

the Guidelines imprisonment range to 360 months to life. Id.

The judge then imposed a sentence commensurate with this

range, of thirty years. Id.

The Supreme Court reversed. Of central importance to

its conclusion was the mandatory nature of the Guidelines. Id.

at 233-35. The Sentencing Reform Act required the district

judge to impose a sentence within the “base” range

recommended by the Guidelines, established solely by the facts

of conviction, unless certain enumerated circumstances were

found to be present. Id. (citing 18 U.S.C. § 3553(b)). In other

words, upon conviction by a jury, the maximum punishment to

which the individual was exposed was the highest point in the

base range prescribed by the Guidelines. Id. The judge lacked

authority to impose a higher sentence in the absence of

additional findings of fact. Id.

These additional facts, under the reasoning of Apprendi,

constituted “elements” of a “crime.” By raising the

recommended Guidelines range, they authorized the district

judge to impose a higher sentence than would be permissible

under the Sentencing Reform Act based solely on the facts of

conviction. Id. They increased the maximum sentence to which

the defendant would otherwise be exposed upon conviction by

a jury. Id. These facts were therefore properly classified as

elements of a crime, subject to the rights to a jury trial and proof

beyond a reasonable doubt. Id. (citing Apprendi, 530 U.S. at

481).

13

The final sentence imposed in Booker was nearly ten

years more than the base range prescribed by the Guidelines. Id.

The range had been increased based on findings made by the

sentencing judge, without submission to a jury. Id. This

violated the defendant’s rights under the Sixth Amendment, as

defined in Apprendi.

This conclusion not only necessitated reversal of the

defendant’s sentence; it cast doubt on the constitutionality of the

federal sentencing regime as a whole. See id. The Guidelines

require that all facts relevant to sentencing be found by a judge

based on information presented during a post-trial hearing. Id.

There is no provision for a jury to make these determinations,

nor any reasonable means to effect this result within the existing

structure. Jury determinations are inherently incompatible with

the Guidelines scheme. Id.

The Court resolved this problem by returning to the basis

of its holding: the constitutional infirmity of the Guidelines was

attributable to their mandatory application under the Sentencing

Reform Act. All members of the Court agreed that, if the

Guidelines were merely advisory, the Sixth Amendment

problem would fall away. Id. at 233, 259. Facts relevant to

enhancements under the Guidelines would no longer increase

the maximum punishment to which the defendant is exposed,

but would simply inform the judge’s discretion as to the

appropriate sentence. Id. These facts would then not be deemed

“elements” of a “crime” and would not trigger the rights

recognized in Apprendi. Id.

To achieve this result, the Court “sever[ed] and

excise[d]” two statutory provisions: “the provision that requires

14

sentencing courts to impose a sentence within the applicable

Guidelines range (in the absence of circumstances that justify a

departure), see 18 U.S.C. § 3553(b)(1),[4] and the provision that

sets forth standards of review on appeal, including de novo

review of departures from the applicable Guidelines range, see

[18 U.S.C.] § 3742(e). [5]” Booker, 543 U.S. at 259. The

4

Section 3553(b)(1) provided, in pertinent part, as

follows:

[T]he court shall impose a sentence of the kind,

and within the range, referred to in subsection

(a)(4) [prescribed by the United States Sentencing

Guidelines] unless the court finds that there exists

an aggravating or mitigating circumstance of a

kind, or to a degree, not adequately taken into

consideration by the Sentencing Commission in

formulating the guidelines that should result in a

sentence different from that described.

18 U.S.C. § 3553(b)(1).

5

Section 3742(e) provided, in pertinent part, as follows:

Upon review of the record, the court of appeals

shall determine whether the sentence–

(1) was imposed in violation of

law;

(2) was imposed as a result of an

incorrect application of the

sentencing guidelines;

(3) is outside the applicable

guideline range, and . . . the

15

sentence de pa r ts f r om the

applicable guideline range based on

a factor that . . . does not advance

the objectives set forth in section

3553(a)(2)[,] . . . is not authorized

under section 3553(b)[, or] . . . is

not justified by the facts of the

case; or . . . the sentence departs to

an unreasonable degree from the

applicable guidelines range, having

regard for the factors to be

c o n s i d e r e d in im p o s i n g a

sentence[;] . . . or

(4) was imposed for an offense for

which there is no applicable

sentencing guideline and is plainly

unreasonable.

The court of appeals shall give due regard to the

opportunity of the district court to judge the

credibility of the witnesses, and shall accept the

findings of fact of the district court unless they are

clearly erroneous and, except with respect to

determinations under subsection (3)(A) or (3)(B),

shall give due deference to the district court’s

application of the guidelines to the facts. With

respect to determinations under subsection (3)(A)

or (3)(B), the court of appeals shall review de

novo the district court’s application of the

guidelines to the facts.

16

excision of these provisions rendered the Guidelines advisory,

freeing the trial judge to impose any sentence permitted under

the United States Code using the calculated Guidelines range as

only one of seven considered factors. Id. The maximum

legislatively authorized punishment to which the defendant is

exposed is no longer the maximum prescribed by the Guidelines;

instead, it is the maximum prescribed by the United States Code.

Id. Therefore, findings of fact relevant to the Guidelines need

not be submitted to a jury. Id.

The Court noted that the “remainder of the Act

‘function[s] independently.’” Id. (quoting Ala. Airlines, Inc. v.

Brock, 480 U.S. 678, 684 (1987)). District courts must still

conduct the full Guidelines analysis in every case. They must

still resolve disputed issues of fact and explain the basis for any

departures. The only change is that the final Guidelines range

does not bind the district court, but merely serves as one of a

number of factors to be considered in fashioning the ultimate

sentence. Id. at 259-60. Of course, for Sixth Amendment

purposes, this change makes all of the difference. See id.

3.

The Supreme Court in Booker did not address the

applicability of the right to proof beyond a reasonable doubt in

an advisory Guidelines system. This is easily explained: it had

no reason to do so. The question presented in Booker was

“[w]hether the Sixth Amendment is violated by the imposition

of an enhanced sentence under the United States Sentencing

18 U.S.C. § 3742(e).

17

Guidelines based on the sentencing judge’s determination of a

fact . . . that was not found by the jury or admitted by the

defendant.” Petition for a Writ of Certiorari, Booker, 543 U.S.

220 (No. 04-104).6 The absence of discussion of the Fifth

Amendment is not an implicit recognition that the right to proof

beyond a reasonable doubt applies at sentencing. Rather, it

simply reflects the limited scope of the grant of certiorari.

There can be no question, in light of the holding of

Booker and the reasoning of Apprendi, that the right to proof

beyond a reasonable doubt does not apply to facts relevant to

enhancements under an advisory Guidelines regime. Like the

right to a jury trial, the right to proof beyond a reasonable doubt

6

We note here that the same question was answered in

Cunningham v. California, No. 05-6551, 2007 WL 135687

(Jan. 22, 2007), which was recently decided by the Supreme

Court. Cunningham, like Booker, considered a mandatory

sentencing regime under the Sixth Amendment and found that

California’s sentencing scheme, which required a judge to

sentence a defendant to a middle range unless she conducted

additional fact-finding, violated the Sixth Amendment as

elucidated in Apprendi, Blakely and Booker. While

Cunningham reinforces the Supreme Court’s recent holdings

regarding a defendant’s right to a jury determination of any fact

that increases his sentence beyond the statutory maximum, it

does not affect our opinion in this case. The challenge before us

is a Fifth Amendment challenge to an advisory sentencing

scheme rather than a Sixth Amendment challenge to a

mandatory sentencing scheme.

18

attaches only when the facts at issue have the effect of

increasing the maximum punishment to which the defendant is

exposed. Apprendi, 530 U.S. at 489-94. The advisory

Guidelines do not have this effect. They require the district

judge to make findings of fact, but none of these alters the

judge’s final sentencing authority. Booker, 543 U.S. at 233.

They merely inform the judge’s broad discretion. Id.

Post-Booker, the punishments chosen by Congress in the

United States Code determine the statutory maximum for a

crime. The Code identifies the facts necessary to establish an

offense and any aggravating circumstances (e.g., significant

drug quantity, use of a firearm, injury to a victim) that increase

the statutory maximum punishment. These facts must be

established beyond a reasonable doubt. Apprendi, 530 U.S. at

490. But, once these facts are found, triggering the statutory

maximum, the judge may impose a sentence anywhere under

that maximum without jury determinations and proof beyond a

reasonable doubt. Harris, 536 U.S. at 565-67; Williams, 337

U.S. at 242-47.

By excising the provisions of the United States Code

requiring mandatory application of the United States Sentencing

Guidelines, the Supreme Court in Booker altered the

constitutional impact of the Guidelines. None of the facts

relevant to enhancements or departures under the Guidelines can

increase the maximum punishment to which the defendant is

exposed. E.g., United States v. Tannis, 942 F.2d 196, 198 (3d

Cir. 1991); see also U.S. Sentencing Guidelines Manual

§ 5G1.1. The Due Process Clause thus affords no right to have

these facts proved beyond a reasonable doubt. Harris, 536 U.S.

at 558 (“Judicial factfinding in the course of selecting a sentence

19

within the authorized range does not implicate the . . .

reasonable-doubt component[] of the Fifth . . . Amendment[].”).

This holding accords with the decisions of each of our

sister circuits that has addressed this issue. See, e.g., United

States v. Dorcely, 454 F.3d 366, 372 (D.C. Cir. 2006); Cirilo-

Munoz v. United States, 404 F.3d 527, 532-33 (1st Cir. 2005);

United States v. Gonzalez, 407 F.3d 118, 125 (2d Cir. 2005);

United States v. Barton, 455 F.3d 649, 657-58 (6th Cir. 2006);

McReynolds v. United States, 397 F.3d 479, 481 (7th Cir. 2005);

United States v. Okai, 454 F.3d 848, 852 (8th Cir. 2006); United

States v. Dare, 425 F.3d 634, 642 (9th Cir. 2005); United States

v. Magallanez, 408 F.3d 672, 685 (10th Cir. 2005); United

States v. Duncan, 400 F.3d 1297, 1304-05 (11th Cir. 2005).

4.

Grier rejects the rationale of these decisions and proposes

a novel standard under which the right to proof beyond a

reasonable doubt would attach to facts relevant to the Guidelines

when those facts constitute a “separate offense.” He finds

support for this position in Jones v. United States, 526 U.S. 227

(1999), and Apprendi. This reliance is misplaced.

The question presented in Jones was whether a provision

of the federal carjacking statute raising the maximum penalty for

crimes involving “serious bodily injury” should be interpreted

as an element of the crime, to which the right to proof beyond a

reasonable doubt applies, or as a mere sentencing enhancement.

526 U.S. at 229. The Supreme Court found, based on

comparisons with other state and federal provisions defining

aggravated robbery and assault as separate offenses, that

“Congress probably intended serious bodily injury to be an

20

element defining an aggravated form of the crime.” Id. at 236.

On this basis, it held that the fact of “serious bodily injury” must

be submitted to a jury and proved beyond a reasonable doubt.

Id. at 232-33, 251-52.

Jones was a statutory interpretation case. The

comparison of the “serious bodily injury” provision to other,

separate offenses was merely a means of gauging Congress’s

probable intent. Id. at 232-36. It was not a statement of

constitutional doctrine and did not purport to base the right to

proof beyond a reasonable doubt on whether the facts at issue

constitute an independent crime. Id.

The only discussion of constitutional rights in Jones is in

the subsidiary context of the interpretative canon of avoidance.

Id. at 239-40. The Supreme Court noted that the “serious bodily

injury” provision of the carjacking statute increased the

maximum punishment to which the defendant was exposed and

therefore likely implicated the defendant’s rights to a jury trial

and proof beyond a reasonable doubt, regardless of whether the

provision was intended to operate as an “element” or an

“enhancement.” Id. at 239-52. The Court avoided the issue,

however, by finding that Congress anticipated that the provision

would stand as a separate “element,” to which these rights

undisputedly applied. Id. at 251-52.

21

There is no question of statutory interpretation here.7 The

7

In his brief, Grier argues that we should use the doctrine

of constitutional avoidance and read § 3553(a) or, alternatively,

U.S.S.G. § 6A1.3(a) to require proof beyond a reasonable doubt.

The doctrine of constitutional avoidance applies “[w]here an

otherwise acceptable construction of a statute would raise

serious constitutional problems.” Edward D. Debartolo Corp.

v. Florida Gulf Coast Bldg. & Const. Trades Council, 485 U.S.

568, 575 (1988). In such instances, “the Court will construe the

statute to avoid such problems unless such construction is

plainly contrary to the intent of Congress.” Id. Before this

canon of interpretation may be used, there must exist a doubt as

to the meaning of the statute. Section 3553(a) states that “[t]he

court shall impose a sentence sufficient, but not greater than

necessary, to comply with the purposes set forth in paragraph (2)

of this subsection.” It makes no reference to any burden of

proof. To read into this provision a requirement that findings be

made beyond a reasonable doubt would fly in the face of the

statutory language. U.S.S.G. § 6A1.3(a) likewise does not

present sufficiently ambiguous language. It instructs that a court

“may consider information without regard to its admissibility

under the rules of evidence applicable at trial, provided that the

information has sufficient indicia of reliability to support its

probable accuracy.” The commentary that accompanies § 6A1.3

reads: “The Commission believes that use of a preponderance

of evidence standard is appropriate . . . .” U.S. Sentencing

Guidelines Manual § 6A1.3 cmt. n.2. To construe § 6A1.3(a) as

requiring proof beyond a reasonable doubt would be “plainly

contrary to the intent of Congress.” Debartolo Corp., 485 U.S.

22

Guidelines were clearly intended by Congress to operate as

sentencing factors, not as elements of a crime. The lack of

clarity regarding congressional intent that compelled the

Supreme Court in Jones to examine whether “serious bodily

injury” could be analogized to an independent crime is simply

not present here.

This is a constitutional case, governed by the rule of

Apprendi: the rights to a jury trial and to proof beyond a

reasonable doubt attach to those facts that increase the statutory

maximum punishment to which the defendant is exposed. 530

U.S. at 490. This standard is not based upon the legislature’s

definition of a fact as an “element” or “enhancement,” id. at

498-90, or upon a formalistic “multifactor parsing of statutes,”

id. at 501 (Thomas, J., concurring). Nor does it depend on

whether the facts in question can be described as a “separate

offense,” a concept that appears nowhere in Supreme Court

jurisprudence in this field except in the statutory discussion of

Jones. 526 U.S. at 232-36. Considering whether Grier’s

conduct might fit within the definition of another crime is no

more than what sentencing judges traditionally did under

indeterminate sentencing schemes. As the Supreme Court stated

in McMillan, there is no way to distinguish the finding of this

kind of “separate offense” “from a host of other express or

implied findings sentencing judges typically make on the way to

passing sentence.” McMillan, 447 U.S. at 92 n.8. The sole

question under Apprendi is whether the fact at issue increases

at 575. The doctrine of constitutional avoidance is, therefore,

inappropriate in this case.

23

the maximum punishment to which the defendant is exposed.

530 U.S. at 490, 494 (“[T]he relevant inquiry is one not of form,

but of effect – does the required finding expose the defendant to

a greater punishment than that authorized by the jury’s guilty

verdict?”).

Facts relevant to application of the Guidelines – whether

or not they constitute a “separate offense” – do not have this

effect. E.g., Tannis, 942 F.2d at 198; see also U.S. Sentencing

Guidelines Manual § 5G1.1. They inform the district court’s

discretion without limiting its authority. They therefore do not

constitute “elements” of a “crime” under the rationale of

Apprendi and do not implicate the rights to a jury trial and proof

beyond a reasonable doubt. 530 U.S. at 490.

5.

The District Court in this case concluded that the burden

of proof for facts relevant to sentencing was preponderance of

the evidence. This standard is suggested by the Guidelines, see

U.S. Sentencing Guidelines Manual § 6A1.3 cmt., is not

precluded by the Fifth or Sixth Amendments, see Booker, 543

U.S. at 259 (“the remainder of the act functions independently”),

and has been approved by this Court, see, e.g., United States v.

Mobley, 956 F.2d 450, 455 (3d Cir. 1992).8

8

In United States v. Kikumura, 918 F.2d 1084 (3d Cir.

1990), we held that sentencing enhancements that “can fairly be

characterized as a ‘tail which wags the dog of the substantive

offense’ must be proved by ‘clear and convincing evidence.’”

Id. at 1100-01 (citing McMillan v. Pennsylvania, 477 U.S. 79,

24

We will affirm the District Court’s decision to apply the

preponderance standard to all facts relevant to the Guidelines,

including the finding that Grier committed the offense of

conviction in connection with an aggravated assault under

Pennsylvania law.

B.

That the District Court applied an acceptable burden of

proof does not, of course, mean that its findings of fact should

be upheld. We have traditionally reviewed factual findings

relevant to sentencing under a “clearly erroneous” standard.

See, e.g., United States v. Lennon, 372 F.3d 535, 538 (3d Cir.

2004). The parties apparently assume that the same standard

should govern in this case.

However, the issue is not so clear cut. The Supreme

Court in Booker excised subsection (e) of 18 U.S.C. § 3742, the

provision of the United States Code that defined the appropriate

standard of review for issues relevant to sentencing. 543 U.S.

at 259. It held that appellate courts should thereafter review the

88 (1986)). While we acknowledge that the statutory and

constitutional underpinnings of that case may be questioned by

the Supreme Court’s reasoning in Booker, this case does not

present a factually similar case to Kikumura. Kikumura’s

sentence was enhanced from 27-30 months to 30 years in prison.

In this case, there was ultimately no departure from the

recommended Guidelines range, as the 100-month sentence was

within the initial 84- to 105-month Guidelines range. Therefore,

it is not necessary for us to reach the current status of Kikumura.

25

ultimate sentence for “reasonableness.” Id. at 260-63.

Unfortunately, it did not specify whether the clearly erroneous

standard should continue to apply to factual findings bearing on

the advisory Guidelines range.

1.

Three options for a standard of review are available.

First, courts of appeals could simply refuse to review factual

findings relevant to the Guidelines on the ground that they do

not govern the district court’s final discretionary sentence. See

United States v. Mickelson, 433 F.3d 1050, 1052-55 (8th Cir.

2006). Second, they could review factual determinations for

“reasonableness,” the standard suggested by Booker for review

of the ultimate sentence. See 543 U.S. at 261. Third, courts

could continue to review findings for “clear error.” See Lennon,

372 F.3d at 538.

The first alternative, under which appellate courts would

decline to review factual findings relevant to the Guidelines, is

clearly untenable. District courts are required, under 18 U.S.C.

§ 3553(a), to consider the range prescribed by the Guidelines in

imposing sentence on a defendant. Id. § 3553(a)(4); see also

Booker, 543 U.S. at 261; Cooper, 437 F.3d at 329-32. The only

manner by which this range can be determined is through a

series of factual findings, adjusting the defendant’s offense level

and criminal history category. An error in these findings will

result in an error in the recommended sentencing range and,

thus, will necessarily impact the district court’s assessment of

the factors of 18 U.S.C. § 3553(a). Appellate review of the

district court’s factual conclusions is essential to ensure its

compliance with statutory mandates. See United States v.

26

Haack, 403 F.3d 997, 1003 (8th Cir.), cert. denied, 126 S. Ct.

276 (2005).

The second alternative, under which courts of appeals

would review findings of the district court for “reasonableness,”

is also unfeasible. The Supreme Court explained in Booker that

review for “reasonableness” is meant to assess the ultimate

sentence impose, to determine whether the sentencing judge

gave meaningful consideration to the factors of 18 U.S.C.

§ 3553(a). 543 U.S. at 260-61. Nothing in Booker suggests that

the same standard is to be applied to evaluate the quantum of

evidence offered in support of a particular finding of fact, even

one that played a role in the court’s final sentence. Indeed,

application of the “reasonableness” standard, with its broad

focus on policy goals, would be incompatible with review of

factual findings. See United States v. Mashek, 406 F.3d 1012,

1015 (8th Cir. 2005).

Review for clear error offers the sole viable approach.

The Supreme Court in Booker excised the “clearly erroneous”

standard from 18 U.S.C. § 3742(e) only because other aspects of

that subsection included impermissible references to a

mandatory Guidelines scheme. 543 U.S. at 260. Just as the

Supreme Court interposed the “reasonableness” standard to fill

in the gap for review of the ultimate sentence, the clearly

erroneous standard fills in the gap for review of particular

factual determinations.

Other courts of appeals have unanimously, if implicitly,

adopted this approach. United States v. Robinson, 433 F.3d 31,

38 (1st Cir. 2005); United States v. Castillo, 430 F.3d 230, 238-

39 (5th Cir. 2005); United States v. Garcia, 413 F.3d 201, 221-

27

22 (2d Cir. 2005); United States v. Davidson, 409 F.3d 304, 310

(6th Cir. 2005); United States v. Mashek, 406 F.3d 1012, 1016

(8th Cir. 2005); United States v. Bothun, 424 F.3d 582, 585-86

(7th Cir. 2005); United States v. Smith, 424 F.3d 992, 1015 (9th

Cir. 2005), cert. denied, 126 S. Ct. 1477 (2006); United States

v. Clark, 415 F.3d 1234, 1246 (10th Cir. 2005); United States v.

Ebersole, 411 F.3d 517, 536 (4th Cir. 2005), cert. denied, 126

S. Ct. 1142 (2006); United States v. Crawford, 407 F.3d 1174,

1177 (11th Cir. 2005). Indeed, we have previously suggested

that the clearly erroneous standard would continue to apply post-

Booker. See United States v. Miller, 417 F.3d 358, 362-63 (3d

Cir. 2005) (“Nothing in Booker . . . necessarily calls into

question the correctness of the District Court’s factual findings

or procedural decisions at the resentencing, or, for that matter,

this court’s [previous] approval thereof.”); United States v.

Pojilenko, 416 F.3d 243, 247 (3d Cir. 2005) (reviewing factual

findings relevant to sentencing for clear error).

Despite the excision of subsection (e) of 18 U.S.C.

§ 3742, this Court will continue to review factual findings

relevant to the Guidelines for clear error and to exercise plenary

review over a district court’s interpretation of the Guidelines.

See, e.g., Robinson, 433 F.3d at 35. “A finding is ‘clearly

erroneous’ when[,] although there is evidence to support it, the

reviewing [body] on the entire evidence is left with the definite

and firm conviction that a mistake has been committed.”

Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers

Pension Trust for S. Cal., 508 U.S. 602, 622 (1993) (quoting

United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).

A sentence imposed as a result of a clearly erroneous factual

conclusion will generally be deemed “unreasonable” and,

28

subject to the doctrines of plain and harmless error, will result

in remand to the district court for resentencing. E.g., Robinson,

433 F.3d at 35; see also Booker, 543 U.S. at 268.

2.

Grier challenges the finding in this case that he

committed aggravated assault. Aggravated assault is defined

under Pennsylvania law as an “attempt[] to cause serious bodily

injury to another . . . under circumstances manifesting extreme

indifference to the value of human life” or an “attempt[] to

cause . . . bodily injury to another with a deadly weapon.” 18

Pa. Cons. Stat. § 2702(a). An “attempt” may be found “when,

with intent to commit a specific crime, [the individual] does any

act which constitutes a substantial step toward the commission

of that crime.” Id. § 901(a); see also Commonwealth v. Hall,

830 A.2d 537, 541-42 (Pa. 2003).

At the sentencing hearing, Navarro testified that he did

not enter the fight with any weapons. The firearm was produced

in some manner during the course of the altercation, and other

individuals warned Navarro that Grier had a gun.9 Soon

9

Defense counsel argues that the statements by these

bystanders were “classic hearsay.” This may be true, but the

Federal Rules of Evidence do not apply at sentencing, see Fed.

R. Evid. 1101(d)(3); see also Kikumura, 918 F.2d at 1099-1100,

and counsel does not argue that Navarro’s recollection of the

statements was so unreliable as to preclude admission under the

liberal standards governing these proceedings, see U.S.

Sentencing Guidelines Manual § 6A1.3(a) (“In resolving any

29

thereafter, the gun discharged. When the two combatants stood

up, Grier was holding the weapon, aimed at Navarro. Grier then

pointed the gun toward the sky, fired a single shot, and left the

scene.

The precise circumstances of the fight are matters of

reasonable speculation. It is arguable – and is argued by Grier

on appeal – that the record shows that the gun accidentally

dropped from his pocket during the altercation, and that his

subsequent actions were intended merely to dissuade Navarro

from continuing the fight. But the District Court found that

Grier intentionally pulled the gun from his clothing and, while

the two men were on the ground, fired a shot in an attempt to

harm or kill Navarro. He thereafter rose and aimed the gun once

again at Navarro but, for whatever reason, decided to fire the

weapon skyward and withdraw from the fight.

“Where, as here, the district court makes no independent

findings of fact in relation to sentencing issues, but instead

adopts the reasons set forth by the probation officer in the

presentence investigation report, we view the report as

containing the only findings of fact that support the court's

sentencing decision.” United States v. Collado, 975 F.2d 985,

990 (3d Cir. 1992). However, because in this case the

presentence investigation report does not contain any specific

dispute concerning a factor important to the sentencing

determination, the court may consider relevant information

without regard to its admissibility under the rules of evidence

applicable at trial, provided that the information has sufficient

indicia of reliability to support its probable accuracy.”).

30

reasons to support its finding of aggravated assault and the

District Court heard testimony from the victim and did not make

any further findings on the question, we will refrain from

reviewing its determination regarding the aggravated assault

until it has stated more explicitly how it reached Grier’s

sentence.

C.

We lack a sufficient record to review Grier’s sentence for

“reasonableness.” The touchstone of “reasonableness” is

whether the record as a whole reflects rational and meaningful

consideration of the factors enumerated in 18 U.S.C.

§ 3553(a).10 Cooper, 437 F.3d at 329-32; see also Booker, 543

10

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–

(A) to reflect the seriousness of the

offense, to promote respect for the law,

and to provide just punishment for the

offense;

(B) to afford adequate deterrence to

criminal conduct;

(C) to protect the public from further

crimes of the defendant; and

(D) to provide the defendant with needed

educational or vocational training, medical

care, or other correctional treatment in the

31

U.S. at 261. It must be clear that the district court understood

and reasonably discharged its obligation to take all of the

relevant factors into account in imposing a final sentence. E.g.,

Cooper, 437 F.3d at 329-32.

The record in this case is simply too sparse to allow us to

conclude that the District Court honored its statutory duty.11 The

most effective manner;

(3) the kinds of sentences available;

(4) the kinds of sentence and the sentencing range

established for . . . the applicable category of

offense committed by the applicable category of

defendant as set forth in the guidelines . . . issued

by the Sentencing Commission[;] . . .

(5) any pertinent policy statement . . . issued by

the Sentencing Commission[;] . . .

(6) the need to avoid unwarranted sentence

disparities among defendants with similar records

who have been found guilty of similar conduct;

and

(7) the need to provide restitution to any victims

of the offense.

18 U.S.C. § 3553(a).

11

An objection to the reasonableness of the final sentence

will be preserved if, during sentencing proceedings, the

defendant properly raised a meritorious factual or legal issue

relating to one or more of the factors enumerated in 18 U.S.C.

§ 3553(a). See Cooper, 437 F.3d at 329 (citing United States v.

Cunningham, 429 F.3d 673, 679 (7th Cir. 2005)). The

32

only explanation of the sentence provided by the District Court

was: “The Court believes that 100 months is reasonable in view

of the considerations of section 3553(a).” This statement, as a

justification of the sentence, leaves much to be desired. It is

devoid of substantive content and offers little assistance to an

appellate tribunal reviewing the sentence.

More elaboration is necessary. The Sentencing Reform

Act mandates that the District Court “consider” the factors of 18

U.S.C. § 3553(a). Id. The record must disclose meaningful

consideration of the relevant statutory factors and the exercise

of independent judgment, based on a weighing of the relevant

factors, in arriving at a final sentence. Cooper, 437 F.3d at

329-32.

The rationale by which a district court reaches a final

sentence is important. It offers the defendant, the government,

the victim, and the public a window into the decision-making

process and an explanation of the purposes the sentence is

intended to serve. It promotes respect for the adjudicative

process, by demonstrating the serious reflection and deliberation

that underlies each criminal sentence, and allows for effective

appellate oversight.

We will remand this case to allow the District Court to

resentence the defendant. We do not suggest that the original

sentence reflects anything less than the sound judgment of the

government does not argue in this case that Grier failed to

preserve his challenge to the sentence imposed by the District

Court.

33

District Judge, or that the final sentence should necessarily

differ from the one previously imposed. The nature of the final

sentence is, as always, a matter within the discretion of the

District Court. We do ask, however, that the District Court

explain its decision on the record, specifically by reference to

the factors of 18 U.S.C. § 3553(a) and further elaboration on its

findings regarding the factual underpinnings of the assault

enhancement.

III.

The opinion in Booker did not alter the burden of proof

or the standard of review for findings of fact relevant to

sentencing. But it did, by rendering the United States

Sentencing Guidelines advisory rather than mandatory, place a

premium on thorough explication of sentencing decisions. A

reasoned and rational justification for a sentence is necessary to

assure the parties of the fairness of the proceedings, to instill

public confidence in the judicial process, and to allow for

effective appellate review.

The explanation offered by the District Court does not

provide us with a sufficiently detailed explanation that lends

itself to effective review. It simply recites the necessity of

compliance with 18 U.S.C. § 3553(a) without expressly

considering the relevant statutory factors. While the original

sentence was most likely the product of comprehensive and

thoughtful deliberation, the record does not reflect that fact. We

will remand this case to allow the District Court to reconsider

the factors of 18 U.S.C. § 3553(a) on the record and then to

resentence the defendant.

34

The judgment of sentence will be vacated and this case

will be remanded to the District Court for further proceedings

in accordance with this opinion.

RENDELL, Circuit Judge, concurring.

I agree with Judge Fisher’s excellent reasoning and

result. However, I write separately because I believe that due

process concerns regarding the standard of proof at sentencing

are minimal, if not non-existent, when the sentence is below the

statutory maximum, as it was here.

Grier argues that due process requires that other

potentially criminal conduct relied on by the sentencing judge to

enhance his sentence must be proven beyond a reasonable doubt.

This is incorrect. The Supreme Court stated in McMillan v.

Pennsylvania, 477 U.S. 79 (1986) that “[o]nce the

reasonable-doubt standard has been applied to obtain a valid

conviction, ‘the criminal defendant has been constitutionally

deprived of his liberty to the extent that the State may confine

him.’” Id. at 92 n.8 (quoting Meachum v. Fano, 427 U.S. 215,

224 (1976)). In other words, once convicted of a crime, the

defendant can be punished to the extent punishment is allowed

by statute for that crime without implicating due process.

Judge Sloviter quotes with specific emphasis Justice

Thomas’s partial dissent in Booker and his statement that “any

fact that increases the sentence beyond what could have been

lawfully imposed on the basis of facts found by the jury or

admitted by the defendant” must be proved beyond a reasonable

doubt. United States v. Booker, 543 U.S. 220, 319 n.6 (2005)

35

(Thomas, J., dissenting in part). Here, there was no such

increase by the sentencing judge, because the Guidelines are

advisory and Grier was sentenced below the statutory maximum

of 120 months.

Due process requires only that the sentence for the crime

of conviction not exceed the statutory maximum, and here the

sentence was within that limit. The spectre of another “crime”

impacting Grier’s sentence would be troublesome from a due

process standpoint only if we were concerned that Grier’s

sentence was in fact based predominantly on conduct wholly

collateral to his convicted crime. This concern animated our

opinion in United States v. Kikumura, 918 F.2d 1084 (3d Cir.

1990), and was explicated very clearly in Judge Rosenn’s

concurrence in that case.12 As noted by Judge Fisher in the

majority opinion, supra p. 24, n. 8, here there is no claim that

the sentencing court did anything other than consider the

evidence of assault as relevant conduct normally considered in

12

See Kikumura, 918 F.2d at 1120 (Rosenn, J.,

concurring) (discussing Kikumura’s 30-year sentence following

conviction for explosives and passport offenses and stating that

“because of the extreme departure involved here for the separate

offense of attempted murder, it seems evident that the

Government and the sentencing judge did not consider

Kikumura’s attempt to kill as collateral but primary”) (emphasis

in original).

36

connection with sentencing for the offense of conviction.13 Due

process accordingly is not implicated.

AMBRO, Circuit Judge, concurring in judgment.

Sean Grier is in prison in part for a crime for which he

was never indicted, never tried, and never convicted. His

sentence is based to some extent on a judicial finding, by a

preponderance of the evidence, that he committed the crime of

aggravated assault. This practice may be efficient. It may often

reflect what “really” happened. But in my view it is not

consistent with our Bill of Rights.14

13

In this connection, our pre-Booker discussion in United

States v. Mobley, 956 F.2d 450, 456-59 (3d Cir. 1992) of due

process considerations in sentencing was correct and should not

be disturbed.

14

See United States v. Booker, 543 U.S. 220, 244 (2005)

(“[I]n some cases jury factfinding may impair the most

expedient and efficient sentencing of defendants. But the

interest in fairness and reliability protected by the right to a jury

trial—a common-law right that defendants enjoyed for centuries

and that is now enshrined in the Sixth Amendment—has always

outweighed the interest in concluding trials swiftly.”); Blakely

v. Washington, 542 U.S. 296, 313 (2004) (“[O]ur decision

cannot turn on whether or to what degree trial by jury impairs

the efficiency or fairness of criminal justice.”); Apprendi v. New

Jersey, 530 U.S. 466, 498 (2000) (Scalia, J., concurring) (“The

founders of the American Republic were not prepared to leave

37

I.

With its landmark ruling in Apprendi, the Supreme Court

began to reinvigorate an important principle: “[D]ue process and

associated jury protections extend, to some degree, to

determinations that go not to a defendant’s guilt or innocence,

but simply to the length of his sentence.” 530 U.S. at 484

(brackets and internal quotation marks omitted). What our

Court does today, however, confirms Justice Stevens’s lament

that the Supreme Court in Booker “effectively eliminated the

very constitutional right Apprendi sought to vindicate.” 543

U.S. at 302 (Stevens, J., dissenting in part). In response, I

believe that a less manipulable rule should be set—that

[criminal justice] to the State, which is why the jury-trial

guarantee was one of the least controversial provisions of the

Bill of Rights. It has never been efficient; but it has always been

free.”); United States v. Kandirakis, 441 F. Supp. 2d 282, 302

(D. Mass. 2006) (Young, J.) (“That our laws routinely require a

defendant’s sentence to be based upon what a judge believes an

offender ‘really’ did, as opposed to the actual crime of which he

was convicted by the jury, is nothing less than offensive—let

alone unconstitutional.”); 4 W ILLIAM B LACKSTONE ,

C OMMENTARIES ON THE L AWS OF E NGLAND 343–44 (1769)

(“[H]owever convenient [‘arbitrary methods of trial’] may

appear at first, (as doubtless all arbitrary powers, well executed,

are the most convenient) yet let it again be remembered, that

delays, and little inconveniences in the forms of justice, are the

price that all free nations must pay for their liberty in more

substantial matters . . . .”).

38

constitutional protections apply not only to those facts that

authorize the “statutory maximum” (as phrased by Apprendi),

see 530 U.S. at 490, but to every fact (save prior convictions)

identified by the law itself as deserving of additional

punishment, no matter what that fact may be called.15 Only in

this way can the principles of Apprendi—followed through in

15

See United States v. Reese, 92 U.S. 214, 232 (1875)

(Clifford, J., concurring) (“[T]he indictment must contain an

allegation of every fact which is legally essential to the

punishment to be inflicted.”); Kandirakis, 441 F. Supp. 2d at

303 (Young, J.) (“If the law identifies a fact that warrants

deprivation of a defendant’s liberty or an increase in that

deprivation, such fact must be proven to a jury beyond a

reasonable doubt.”); Mark D. Knoll & Richard G. Singer,

Searching for the “Tail of the Dog”: Finding “Elements” of

Crimes in the Wake of McMillan v. Pennsylvania, 22 S EATTLE

U. L. R EV. 1057, 1062–67 (1999) (“The general rule that every

fact which constitutes an aggravation of the offense had to be

alleged and proved to a jury beyond a reasonable doubt is

reflected in numerous state court opinions and early English

cases, as well as in early federal cases.” (footnotes omitted)

(citing 2 S IR M ATTHEW H ALE, H ISTORIA P LACITORUM C ORONAE

(1736))); Hon. Boyce F. Martin, Jr., The Cornerstone Has No

Foundation: Relevant Conduct in Sentencing and the

Requirements of Due Process, 3 S ETON H ALL C ONST. L.J. 25,

30–31 (1993) (“Once Congress creates a sentencing system

which eliminates discretion and requires specific findings of

‘actual criminal conduct,’ it creates positive law which must

abide by the Due Process Clause.”).

39

Blakely, Booker, and, most recently, Cunningham 16 —be fully

respected.

The concept is simple: if our society, through its law,

deems a certain fact worth punishing (or warranting additional

punishment), then the Constitution commands certain procedural

protections attending the finding of that fact. Rather than

following this principle of fundamental fairness, however, our

law— by way of the Federal Sentencing

Guidelines—criminalizes activity “on the cheap.” Despite

Apprendi and its progeny, we continue to allow sentencing

judges, once a jury has found beyond a reasonable doubt that a

defendant has committed one crime, then to find him guilty by

a preponderance of the evidence of other crimes for which he

was not tried—or worse, tried and acquitted—and to sentence

him as if he had been convicted of them as well. In effect, we

have a shadow criminal code under which, for certain suspected

offenses, a defendant receives few of the trial protections

mandated by the Constitution.

Yet, much as my sympathies align with the principles

explained in Judge Sloviter’s and Judge McKee’s superb

dissents, I have concluded that I am bound by Supreme Court

precedent to concur in the judgment of the majority in this case.

To create a sentencing process that fully carries through on the

promise of Apprendi and Blakely, I believe the Supreme Court

would have to overrule, at least, McMillan v. Pennsylvania, 477

U.S. 79 (1986) (allowing “sentencing factors” that enhance

16

Cunningham v. California, No. 05-6551, 549 U.S. ___,

2007 WL 135687 (U.S. Jan. 22, 2007).

40

punishment to be proven by a preponderance of the evidence),

and Harris v. United States, 536 U.S. 545 (2002) (reaffirming

McMillan after Apprendi and again holding that judicial fact-

finding by a preponderance of the evidence at sentencing passes

constitutional muster).

Many, including Justice Breyer in Harris itself, have

been unable to reconcile McMillan and Harris with the Supreme

Court’s holding in Apprendi. See 536 U.S. at 569–70 (Breyer,

J., concurring).17 But “it is th[e] [Supreme] Court’s prerogative

alone to overrule . . . its own precedents.” State Oil Co. v. Khan,

522 U.S. 3, 20 (1997). This it has not yet done. For this reason

alone, I join the result reached by the majority.18 I do not join its

opinion because, among other things, I do not agree with its

suggestion that the Due Process Clause has no force in criminal

sentencing.

17

The majority here finds much support in Harris when

reasoning that the Apprendi line of cases dictates the outcome in

this case. Significantly, however, all of the majority’s citations

to Harris are from a section of that opinion that did not have the

support of a majority of the Justices. Justice Breyer, Harris’s

fifth vote, did not believe that the holding of Harris was

consistent with Apprendi; he voted with the majority only

because he did not agree with Apprendi. See Harris, 536 U.S.

at 569–70 (Breyer, J., concurring). Given that Apprendi has

been repeatedly reaffirmed since Harris, thus strengthening its

stare decisis effect, the majority here must surely recognize the

danger in relying on Harris for support.

18

I also join Parts II.B and II.C of the majority opinion.

41

II.

Both the majority and dissenting opinions contend that

the Supreme Court’s Apprendi line of cases, culminating at the

federal level with Booker, dictates the answer to the question

presented here. It does not.

Apprendi holds that, “[o]ther than the fact of a prior

conviction, any fact that increases the penalty for a crime

beyond the prescribed statutory maximum must be submitted to

a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490.

The majority correctly notes that Apprendi’s holding is rooted

in the jury right of the Sixth Amendment, not the right to due

process guaranteed by the Fifth, Maj. Op., supra, at 17–18;

Apprendi speaks only of the reasonable-doubt standard for jury

verdicts as a “companion” to the jury guarantee, see 530 U.S. at

478.19 Moreover, nothing in Apprendi’s progeny—particularly

Blakely and Booker—altered its Sixth Amendment basis. In

Blakely, the Supreme Court provided further clarification of

what was meant by Apprendi’s use of the term “statutory

maximum,” saying that it refers not to “the maximum sentence

a judge may impose after finding additional facts, but the

19

See also Apprendi, 530 U.S. at 490 (“‘[I]t is

unconstitutional for a legislature to remove from the jury the

assessment of facts that increase the prescribed range of

penalties to which a criminal defendant is exposed. It is equally

clear that such facts must be established by proof beyond a

reasonable doubt.’” (emphasis added, third alteration in original)

(quoting Jones v. United States, 526 U.S. 227, 252–53 (1999)

(Stevens, J., and Scalia, J., in separate concurrences)).

42

maximum he may impose without any additional findings.” 542

U.S. at 303–04 (first emphasis added). In Booker, Justice

Stevens’s merits opinion simply took that definition and applied

it to the Federal Sentencing Guidelines. 543 U.S. at 233

(“[T]here is no distinction of constitutional significance between

the Federal Sentencing Guidelines and the Washington

procedures at issue in [Blakely].”). In short, because facts found

by judges led to Guidelines sentences that had “the force and

effect of laws” (i.e., they constituted statutory maximums under

Apprendi and Blakely), the Guidelines as they stood were

unconstitutional. Id. at 234.

Justice Breyer’s majority opinion in Booker remedied this

constitutional infirmity not by having juries find Guidelines

facts, but instead by unmaking the Guidelines as statutory

maximums—“sever[ing] and excis[ing]” those portions of the

U.S. Code that made them binding on sentencing and appellate

courts. See 18 U.S.C. §§ 3553(b)(1), 3742(e); Booker, 543 U.S.

at 245, 258–65. This fix unmade the top of the Guidelines

ranges as statutory maximums (which Justice Stevens, for the

Court, had just held them to be), and turned the relevant focus

to the maximum sentences set out in the U.S. Code. After

Booker, then, the Sixth Amendment does not require Guidelines

facts to be proven to a jury; instead, juries must find only those

facts that increase the applicable maximum sentence as reflected

in the U.S. Code.

Few, I suspect, disagree with this analysis. For our case,

though, it is as unhelpful as it is obvious. The issue here is not

what the Sixth Amendment requires, but rather what is

43

consistent with due process as protected by the Fifth

Amendment.20

A.

Though Apprendi speaks only of the burden of proof for

a jury verdict that is required by the Fifth Amendment right to

due process as a “companion” to the Sixth Amendment jury

right, 530 U.S. at 478, this is understandable: the Sixth

Amendment is Apprendi’s principal focus. Predictably, no

majority opinion in Blakely or Booker (which only expounded

on Apprendi) even mentions the Fifth Amendment or due

process. It is somewhat perplexing, then, that the majority here

invokes “the reasoning of Apprendi” and “the holding of

Booker”—both Sixth Amendment cases—to explain its Fifth

Amendment due process ruling in this case. Maj. Op., supra, at

18. Though every fact that must be found by a jury must also be

found beyond a reasonable doubt, this does not mean that those

20

Though some have argued that the doctrine of

constitutional avoidance counsels in favor of applying a

reasonable-doubt standard in the post-Booker finding of

Guidelines facts, see, e.g., Memorandum from Steven T. Wax

and Stephen R. Sady to Federal Public Defenders (Jan. 31,

2005), at http://www.federaldefenders.org/blog_doubtredux.pdf,

I agree with the majority that the doctrine does not apply here,

see Maj. Op., supra, at 22–23 n.7. Though Judge Sloviter

argues that the comment to § 6A1.3 in the Guidelines is

inapplicable to this case, Dis. Op., infra, at 80–82 (Sloviter, J.,

dissenting), I consider that policy statement to be directly on

point, thus precluding invocation of the doctrine.

44

facts not required to be found by a jury do not have to be found

beyond a reasonable doubt. The Supreme Court demonstrated

long ago that the Fifth Amendment sometimes requires

application of the reasonable-doubt standard to facts not found

by a jury. See In re Winship, 397 U.S. 358, 359–60, 365–68

(1970) (holding on due process grounds that findings in a

juvenile criminal proceeding must be found beyond a reasonable

doubt, even though not determined by a jury).

While I believe the majority’s holding will yield a result

consistent with Supreme Court precedent in most cases, its

reasoning, which intimates that Booker’s Sixth Amendment

holding addresses and solves all due process issues relating to

the burden of proof for Guidelines facts, is too sweeping. See

Maj. Op., supra, at 19 (“The Due Process Clause . . . affords no

right to have [Guidelines facts] proved beyond a reasonable

doubt.” (emphasis added)). More importantly, it is also

inconsistent with McMillan, which, unlike Booker, provides the

most complete answer to the issue presented here.

In McMillan, the Supreme Court upheld a Pennsylvania

statute that mandated a minimum term of imprisonment upon a

judicial finding, by a preponderance of the evidence, that the

defendant “‘visibly possessed a firearm’ during the commission

of the [underlying] offense.” 477 U.S. at 81. The Court rejected

the defendant’s contention that due process required the finding

of a sentencing factor be made on a heightened standard of

proof (either proof beyond a reasonable doubt or by clear and

convincing evidence). Id. at 91. Explaining its decision, the

Court reasoned that “[s]entencing courts have traditionally heard

evidence and found facts without any prescribed burden of proof

at all,” and saw “nothing in Pennsylvania’s scheme that would

45

warrant constitutionalizing burdens of proof at sentencing.” Id.

at 91–92. It noted the undeniable constitutionality of a

sentencing scheme where “the legislature had simply directed

the court to consider visible possession in passing sentence.” Id.

at 92 (emphasis in original). Given this, there was no reason

“why the due process calculus would change simply because the

legislature has seen fit to provide sentencing courts with

additional guidance.” Id. McMillan, therefore, provides that

facts relevant only to sentencing must be proven only by a

preponderance of the evidence—if a particular standard is

required at all.

In Apprendi, decided 14 years after McMillan, the

Supreme Court addressed the viability of that holding: “The

principal dissent accuses us of today ‘overruling McMillan.’ We

do not overrule McMillan. We limit its holding to cases that do

not involve the imposition of a sentence more severe than the

statutory maximum for the offense established by the jury’s

verdict . . . .” 530 U.S. at 487 n.13. Two years later, in Harris,

the Court specifically took up the question of “whether

McMillan stands after Apprendi” and reaffirmed it. 536 U.S. at

550, 568. Necessarily, therefore, the Fifth Amendment

(pursuant to McMillan) must protect the finding of some facts

below the statutory maximum, even if the Sixth Amendment

(pursuant to Apprendi) does not.

For the federal system (and this case), this is where

Booker becomes relevant. Even after Apprendi, everyone

assumed that the “statutory maximum” of which it spoke

referred to the maximum sentence set out in the U.S. Code. See

Dis. Op., infra, at 111 (McKee, J., dissenting) (citing United

States v. Leahy, 438 F.3d 328, 345 & n.16 (3d Cir. 2006)

46

(McKee, J., dissenting) (citing cases)). The logic of Blakely

suggested that this assumption was not correct,21 and Justice

Stevens’s merits opinion in Booker confirmed as much—the top

of a mandatory Guidelines range constituted a statutory

maximum, the determinative facts of which must be found by a

jury beyond a reasonable doubt. Just as soon as Justice

Stevens’s merits opinion in Booker declared the Federal

Sentencing Guidelines unconstitutional, however, Justice Breyer

ushered them out of “Apprendi-land” 22 to constitutional safety.

They are now “advisory” and no longer constitute statutory

maximums as defined in Apprendi and Blakely.23

21

See John Gleeson, The Road to Booker and Beyond:

Constitutional Limits on Sentence Enhancements, 21 T OURO L.

R EV. 873, 882–83 (2006) (“From the perspective of the lower

federal courts, Blakely might as well have said, ‘We hold that

the statutory maximum sentence is not the statutory maximum

sentence.’”); Kevin R. Reitz, The New Sentencing Conundrum:

Policy and Constitutional Law at Cross-Purposes, 105 C OLUM.

L. R EV. 1082, 1091 (2005) (“Here was the huge surprise in

Blakely: that a guideline presumption nested within broader

statutory parameters should itself be understood as a statutory

maximum.”).

22

Ring v. Arizona, 536 U.S. 584, 613 (2002) (Scalia, J.,

concurring).

23

Judge McKee makes a powerful argument that the

Guidelines’ continued significance in federal sentencing

nevertheless implicates the holdings of Apprendi and Blakely.

47

Therefore, Justice Breyer’s opinion in Booker, which

Dis. Op., infra, Part I.A (McKee, J., dissenting). Though he

disavows any attempt to “undermine Booker,” Dis. Op., infra,

at 117 n.52 (McKee, J., dissenting), his argument accomplishes

just that. Its logic is that “considering” the Guidelines—as

required by Booker’s remedial opinion—renders them just as

essential to (and determinative of) a defendant’s punishment as

they were pre-Booker. In making this case, Judge McKee has

good company. See United States v. Henry, No. 04-3076, ___

F.3d ___, 2007 WL 79011, at *11 (D.C. Cir. Jan. 12, 2007)

(Kavanaugh, J., concurring) (noting that “current federal

sentencing practices may be in tension with the Constitution . . .

because the current system—in practice—works a lot like the

pre-Booker system”); Kandirakis, 441 F. Supp. 2d at 289–99

(Young, J.) (“[T]he Guidelines—and their judge-made factual

findings—are still the driving force behind federal

sentencing.”); Michael W. McConnell, The Booker Mess, 83

D ENVER U. L. R EV. 665, 677 (“The jury verdict is no more

consequential after Booker than before.”). Indeed, Justice Scalia

made the same point in his dissent to Booker’s remedial opinion.

See 543 U.S. at 311–13 (predicting that Booker’s remedy would

create de facto mandatory Guidelines). The reality is, however,

the same Court to strike down the judge-based, mandatory

Guidelines system as unconstitutional also issued the remedy: a

judge-based, advisory Guidelines scheme. No matter how

compelling Judge McKee’s reasoning may be, it must fail, as it

cannot be unconstitutional under current doctrine for a

sentencing judge to do exactly what the Supreme Court has

instructed be done.

48

remedied the Guidelines’ Sixth Amendment infirmity, put

federal sentencing with regard to the Fifth Amendment back

where it was before Justice Stevens’s merits opinion in Booker

was decided. And as explained above, Apprendi and Harris

made clear that McMillan still sets out the Fifth Amendment

rule applicable to the burden of proof for sentencing factors,

which generally is a preponderance of the evidence.

Technically, therefore, it is not Apprendi, Blakely, or Booker

that solve the due process question here, as suggested by the

majority. Instead, it is McMillan.24

24

I must also, therefore, respectfully disagree with my

dissenting colleagues, who argue that Apprendi and Blakely

operate post-Booker to require proof beyond a reasonable doubt

for the Guidelines fact at issue here—whether Grier committed

an aggravated assault. That the Guidelines are no longer

mandatory makes all the constitutional difference as far as those

cases are concerned. As Justice Stevens’s merits opinion in

Booker said, “If the Guidelines as currently written could be

read as merely advisory provisions that recommended, rather

than required, the selection of particular sentences in response

to differing sets of facts, their use would not implicate the Sixth

Amendment.” 543 U.S. at 233; see also Apprendi, 530 U.S. at

481. That is exactly what Justice Breyer’s remedial opinion in

Booker purported to do. But see supra, note 23.

Both Judge Sloviter and Judge McKee highlight the

Supreme Court’s statement in Blakely that “‘the ‘statutory

maximum’ for Apprendi purposes is the maximum sentence a

judge may impose solely on the basis of the facts reflected in the

jury verdict or admitted by the defendant’” in arguing that

49

Apprendi can apply under the statutory maximum. Dis. Op.,

infra, at 95 (Sloviter, J., dissenting) (quoting Blakely, 542 U.S.

at 303 (emphasis in Blakely)); see also Dis. Op., infra, at 108

(McKee, J., dissenting). I believe, however, that they overlook

a critical qualifier in that statement: the word “may.” For only

if the Guidelines are mandatory, as they were pre-Booker, is

Blakely violated. Under that system, a judge could not sentence

a defendant above the Guidelines range associated with the base

offense level for the offense of conviction without finding

additional facts. But because Justice Breyer’s remedial opinion

in Booker “sever[ed] and excis[ed]” the statutory provisions

making the Guidelines mandatory on sentencing and appellate

courts, a judge “may” impose any sentence made available by

the statute of conviction, regardless of any additional facts he

may or may not find. The jury verdict alone now sets the

bounds of a judge’s sentencing discretion; therefore, Blakely

does not decide this case.

Nothing in the Supreme Court’s recent Cunningham

decision alters this conclusion. Cunningham, like the merits

decision in Booker, is nothing more than a simple application of

Blakely—this time to California’s determinate sentencing law.

See Cunningham, 2007 WL 135687, at *10 n.10 (“California’s

[law] . . . resembles pre-Booker federal sentencing in the same

ways Washington’s sentencing system did [in Blakely] . . . .”).

Thus, Cunningham does not inform the law applicable here in

any material way, as Judge Sloviter and Judge McKee argue.

See Dis. Op., infra, at 91–92, 97 (Sloviter, J., dissenting); Dis.

Op., infra, Part IV (McKee, J., dissenting).

Judge Sloviter argues at length that Jones v. United

50

States, 526 U.S. 227 (1999), compels the conclusion she

reaches. See Dis. Op., infra, at 84–89 (Sloviter, J. dissenting).

Her argument is that because (1) there would have been “grave

and doubtful constitutional questions” in Jones if the statute in

that case were interpreted other than how it was (i.e., that it

established three separate crimes), Jones, 526 U.S. at 239, and

(2) that “[t]he Jones factual scenario does not differ markedly

from that presented in this case,” Dis. Op., infra, at 85 (Sloviter,

J., dissenting), the Constitution thus requires that separate-crime

sentencing enhancements be proven beyond a reasonable doubt.

It is not debatable, though, that Jones employed the

doctrine of constitutional avoidance to reach its result. See

Jones, 526 U.S. at 251–52; see also Cunningham, 2007 WL

135687, at *7. That doctrine “is not a method of adjudicating

constitutional questions by other means. Indeed, one of [its]

chief justifications is that it allows courts to avoid the decision

of constitutional questions.” Clark v. Martinez, 543 U.S. 371,

381 (2005) (citations omitted, emphasis in original). Therefore,

Judge Sloviter’s reliance on Jones is misplaced, for that case did

not answer any constitutional questions. Rather, those difficult

questions were answered later—in Apprendi, Blakely, and

Booker. See Booker, 543 U.S. at 237 (noting that concerns over

modern sentencing practices “led us to the answer first

considered in Jones and developed in Apprendi and subsequent

cases culminating with this one [Booker].” (emphasis added));

see also Cunningham, 2007 WL 135687, at *7 (“[T]he Jones

opinion presaged our decision, some 15 months later, in

Apprendi v. New Jersey.” (citation omitted)).

51

This technicality can be significant, however, because

McMillan provided caveats to its general Fifth Amendment

rule—caveats which the Apprendi line does not create in the

Sixth Amendment context. See Cunningham, 2007 WL 135687,

at *11, 12, 21, 22 (referring to Apprendi’s “bright-line rule”);

Blakely, 542 U.S. at 308 (contrasting Apprendi’s “bright-line

rule” with McMillan). And this is where the majority and I part

company in this case, as the rule it announces does not allow for

exception. See Maj. Op., supra, at 11 (“It is to these facts

[‘elements’ of the ‘crime’], and these facts alone, that the right[]

to . . . proof beyond a reasonable doubt attach[es].” (emphasis

added)). I echo Judge Sloviter on this point: “Can the majority

really be suggesting that the Due Process Clause . . . is never

applicable to any sentencing issue?” Dis. Op., infra, at 84

(Sloviter, J., dissenting). If that is its intention, the majority is

simply incorrect. Even more disturbing, the majority needlessly

calls into question one of the few cases ever to apply McMillan

and require a heightened burden of proof for sentencing factors.

See Maj. Op., supra, at 24–25 n.8 (citing United States v.

Kikumura, 918 F.2d 1084, 1100 (3d Cir. 1990) (holding that

Guidelines facts having a disproportionate effect on the sentence

must be proven by clear and convincing evidence)).

In McMillan the Supreme Court spent considerable time

detailing exactly what about the Pennsylvania statute at issue

there led to the conclusion that it did not violate due process. In

effect, the discussion sets out various conditions that, if found

to be otherwise, can lead to the conclusion that a sentencing

factor must be proven to a higher evidentiary standard despite

the general rule. First, the Pennsylvania statute in McMillan did

not “discard[] the presumption of innocence” or “create . . .

52

[evidentiary] presumptions” that “relieve the prosecution of its

burden of proving guilt.” McMillan, 477 U.S. at 87. Second,

the statute did not “alter[] the maximum penalty for the crime

committed []or create[] a separate offense calling for a separate

penalty.” Id. at 87–88. Third, the statute and its structural

context in Pennsylvania law did not appear to be an attempt by

the State to “‘evade’ the commands of Winship” that elements

of a crime be proven beyond a reasonable doubt. Id. at 89. As

an indication of this, the Court noted that the sentencing factor

at issue—visible possession of a firearm—had not “historically

been treated ‘in the Anglo-American legal tradition’ as requiring

proof beyond a reasonable doubt.” Id. at 90 (quoting Patterson

v. New York, 432 U.S. 197, 226 (1977) (Powell, J., dissenting)).

Lower courts eventually distilled these considerations

into a single, metaphorical standard used in McMillan itself—“a

tail which wags the dog.” 477 U.S. at 88 (“The [Pennsylvania]

statute gives no impression of having been tailored to permit the

visible possession finding to be a tail which wags the dog of the

substantive offense.”). What this elusive standard means in

practice is discussed shortly, but for present purposes what is

important is that, just as much as its general holding,

McMillan’s canine metaphor is still the Fifth Amendment’s

mandate when it comes to the burden of proof for sentencing

factors. See Blakely, 542 U.S. at 307–08 (refusing to adopt

McMillan’s Fifth Amendment standard for the Sixth

Amendment, necessarily implying that it still governs Fifth

Amendment burden-of-proof questions); Apprendi, 530 U.S. at

487 n.13 (discussed above); Harris, 536 U.S. at 550, 568

(discussed above).

53

Four years after McMillan, our Court was the first to

apply the tail-that-wags-the-dog standard to require a heightened

burden of proof for Guidelines facts. In United States v.

Kikumura we held that “if the magnitude of the contemplated

departure [from the Guidelines range] is sufficiently great that

the sentencing hearing can fairly be characterized as a ‘tail

which wags the dog of the substantive offense[,]’ . . . the

factfinding underlying that departure must be established at least

by clear and convincing evidence.” 918 F.2d at 1100.25 In the

ensuing years, we often relied on Kikumura when determining

25

We did not rule that the appropriate standard was any

higher (i.e., beyond a reasonable doubt) only because the

defendant had not argued for it. See Kikumura, 918 F.2d at

1101.

54

the appropriate standard of proof for Guidelines facts,26 as did

courts across the country.27

26

See, e.g., United States v. Mack, 229 F.3d 226, 232–35

(3d Cir. 2000) (holding that an increase of 39% in Guidelines

range and 12% in actual sentence did not require the relevant

sentencing factors to be found by clear and convincing

evidence); United States v. Paster, 173 F.3d 206, 216–17 (3d

Cir. 1999) (noting that the Government conceded that a clear-

and-convincing standard was proper for the nine-level departure

it sought); United States v. Baird, 109 F.3d 856, 865 n.8 (3d Cir.

1997) (holding that a five-level departure did not “present the

rare circumstance” presented in Kikumura); United States v.

Bertoli, 40 F.3d 1384, 1409–10 (3d Cir. 1994) (applying

Kikumura to a factual finding which dictated a 50-fold upward

departure from the criminal fine as calculated in accordance

with the Guidelines); United States v. Seale, 20 F.3d 1279,

1287–89 (3d Cir. 1994) (requiring proof by clear and convincing

evidence when the enhancement resulted in a seven-fold

increase in the Guidelines-calculated fine); United States v.

Mobley, 956 F.2d 450, 454–59 (3d Cir. 1992) (holding that an

enhancement raising the Guidelines range from 15–21 months

to 21–27 months did not violate due process).

27

See, e.g., United States v. Mezas de Jesus, 217 F.3d

638, 642–45 (9th Cir. 2000) (citing United States v. Restrepo,

946 F.2d 654, 659–60 (9th Cir. 1991) (adopting Kikumura), and

requiring an uncharged kidnapping to be found by clear and

convincing evidence when such a finding would result in a nine-

level Guidelines enhancement and the resulting sentencing range

55

to increase from 31–27 months to 57–71 months); United States

v. Gigante, 94 F.3d 53, 56 (2d Cir. 1996) (“In our view, the

preponderance standard is no more than a threshold basis for

adjustments and departures, and the weight of the evidence, at

some point along a continuum of sentence severity, should be

considered with regard to both upward adjustments and upward

departures.” (emphasis in original)); United States v. Lombard,

72 F.3d 170, 183–87 (1st Cir. 1995) (holding it to be a violation

of due process not to consider a downward departure where

defendant had been acquitted of a state-law murder charge, but

the Guidelines required an enhancement based on finding by a

preponderance of the evidence that the defendant indeed had

committed the murder, causing the Guidelines sentence to go

from 262–327 months to mandatory life imprisonment); United

States v. Mergerson, 4 F.3d 337, 344 (5th Cir. 1993) (“We

believe that, although there may be certain cases where a

sentencing fact is a ‘tail that wags the dog of the substantive

offense,’ and might arguably require a finding beyond a

reasonable doubt, this is not such a case.” (citations omitted));

United States v. Lam, 966 F.2d 682, 688 (D.C. Cir. 1992)

(reserving the question of whether the clear-and-convincing

standard might be necessary in “extraordinary circumstances”);

United States v. Trujillo, 959 F.2d 1377, 1382 (7th Cir. 1992)

(holding that the facts supporting a six-level increase in the base

offense level did not require a heightened standard of proof, but

noting the Seventh Circuit’s prior approval of Kikumura in

United States v. Schuster, 948 F.2d 313, 315 (7th Cir. 1991));

United States v. Townley, 929 F.2d 365, 369–70 (8th Cir. 1991)

(refusing to “foreclose the possibility that in an exceptional case,

56

Consequently, when the majority here says “there is every

reason to believe that the Supreme Court intended that the

practices that have guided us and other courts in the twenty

years since the Guidelines were first promulgated would

continue to govern sentencing in the federal courts,” Maj. Op.,

supra, at 9, but then goes on to “question[]” an important part of

our due process sentencing jurisprudence from those same

twenty years, Maj. Op., supra, at 24–25 n.8, there is a

disconnect. Kikumura, like McMillan on which it is based, still

controls burden-of-proof questions for Guidelines facts. See

United States v. Archuleta, 412 F.3d 1003, 1007–08 (8th Cir.

2005) (“Nothing in Booker changes the interpretation of

McMillan in our post-Apprendi cases.”). There is, therefore, no

need to doubt the “statutory and constitutional underpinnings of

[Kikumura],” Maj. Op., supra, at 24–25 n.8, and I do not.28

such as this one, the clear and convincing evidence standard

adopted by [Kikumura] might apply.”); United States v. St.

Julian, 922 F.2d 563, 569 n.1 (10th Cir. 1990) (adopting the

holding of Kikumura).

28

The Ninth Circuit Court of Appeals has ruled that its

own Kikumura jurisprudence survives Booker. See United

States v. Staten, 466 F.3d 708, 717–20 (9th Cir. 2006). There,

even the Government initially agreed that a heightened burden

of proof applied for sentencing factors having a disproportionate

effect on the sentence, though it later recanted. See id. at

717–18 & n.6.

In contrast, the Seventh Circuit Court of Appeals, relying

57

It should be of no moment that the “usual in a Kikumura

case” is for the sentencing court to rule “that the tail ha[s] not

wagged the dog.” Reuter, 463 F.3d at 793. The few defendants

who have benefitted from the minimal due process protection

that Kikumura (as subsequently interpreted) provides surely are

grateful that courts have not yet abandoned entirely the Fifth

Amendment at sentencing. I would not have us do so now.

B.

To repeat, I am sympathetic to the position advanced by

Judge Sloviter and Judge McKee, who would require sentencing

enhancements that themselves constitute separate crimes be

proven beyond a reasonable doubt. The majority claims that this

position is “novel.” Maj. Op., supra, at 20. And though I

ultimately cannot join my dissenting colleagues, the principle

behind their position reflects a concern that is anything but

novel.

Contrary to the majority’s assertion that the separate-

offense concept “appears nowhere in Supreme Court

jurisprudence,” Maj. Op., supra, at 23, that Court in fact

on the vacated panel decision in this case, has held that

Kikumura-style due process analysis did not survive Booker.

See United States v. Reuter, 463 F.3d 792, 793 (7th Cir. 2006).

However, that decision has little persuasive value because,

though the en banc majority here needlessly calls Kikumura into

doubt, it ultimately does not endorse the initial panel’s

gratuitous “overruling” of Kikumura. See Maj. Op., supra, at

24–25 n.8.

58

repeatedly has expressed concern over Government

manipulation of the criminal justice system by circumventing the

procedural protections of trial in order to achieve an identical

result at sentencing. See, e.g., Blakely, 542 U.S. at 307 n.11

(“Another example of conversion from separate crime to

sentence enhancement . . . is the obstruction-of-justice

enhancement. Why perjury during trial should be grounds for

a judicial sentence enhancement on the underlying offense,

rather than an entirely separate offense to be found by a jury

beyond a reasonable doubt[,] . . . is unclear.” (internal citations

omitted)). 29 Recall also that one of the several considerations

29

When the Supreme Court in Blakely sought to develop

the test for when the Sixth Amendment required that a jury find

a particular fact, it considered several options. The first of these

was that “the jury need only find whatever facts the legislature

chooses to label elements of the crime, and that those it labels

sentencing factors—no matter how much they may increase the

punishment—may be found by the judge.” Blakely, 542 U.S. at

306. The Court rejected this approach, however, saying that it

“would mean, for example, that a judge could sentence a man

for committing murder even if the jury convicted him only of

illegally possessing the firearm used to commit it—or of making

an illegal lane change while fleeing the death scene. Not even

Apprendi’s critics would advocate this absurd result.” Id.

Not only does this discussion prove that my dissenting

colleagues’ concern is not novel, one would also think the

majority here might pause in the face of it. The same test

labeled “absurd” by the Supreme Court for the Sixth

Amendment is the one adopted by the majority for the Fifth

59

McMillan identified as significant to its due process analysis

was that the sentencing factor at issue there was not a fact that

had “historically been treated in the Anglo-American tradition

as requiring proof beyond a reasonable doubt.” 477 U.S. at 90

(internal quotation marks omitted). In other words, unlike the

enhancement at issue in this case, the sentencing factor in

McMillan did not itself constitute a crime. Far from “novel,”

therefore, the relevance of a sentencing factor also being a

separate crime in determining the applicable burden of proof

certainly exists in Supreme Court precedent.

For two reasons, however, I cannot join Judge Sloviter or

Judge McKee in dissent. First, the rule propounded by the

dissenting opinions—like the majority opinion—is inconsistent

with McMillan, which I believe is controlling here. See supra

Part II.A & n.11. Second, that rule is incompatible with the

Supreme Court’s ruling in United States v. Watts, 519 U.S. 148

(1997), which also remains good law despite unrelenting

challenge. I will address each of these reasons in turn.

Precedent from this and other courts that have applied

McMillan demonstrates that there are several relevant

considerations in deciding what due process requires in the

sentencing context, not simply whether a particular enhancement

is also a separate crime. As already noted, the Supreme Court

in McMillan cited no fewer than three considerations that were

significant to its holding that a heightened standard was not

required in that case, only one of which was the sentencing

Amendment (though I concede it does not produce an “absurd”

result in this instance).

60

factor’s traditional treatment in criminal law. See McMillan,

477 U.S. at 87–90.

In United States v. Mobley, 956 F.2d 450, 454–59 (3d

Cir. 1992), we addressed an argument similar to the one raised

here, namely that U.S.S.G. § 2K2.1(b)(2) (now § 2K2.1(b)(4))

constituted a separate crime and, without proof of scienter,

violated the Due Process Clause. We rejected this argument,

noting the constitutional differences between trial and

sentencing. We stated that the similarity between a sentencing

enhancement and a separate statutory offense “says nothing

about whether [a defendant’s right to] due process was violated.

All it means is that under certain circumstances Congress and

the [Sentencing] Commission have set the same penalties. This

is not the situation of a tail wagging the dog; but rather, of two

dogs having tails of equal length.” Id. at 457. As we explained,

there is a “distinction among a sentence, sentence enhancement,

and definition of an offense.” Id. Consequently, we held that

even though a sentencing enhancement might also be a separate

crime, that fact does not categorically preclude its use at

sentencing, either absent a finding of scienter or, most relevant

here, on a lower standard of proof.30

In United States v. Lombard, 72 F.3d 170 (1st Cir. 1995),

for example, the First Circuit Court of Appeals produced a

30

Judge Sloviter avoids Mobley only by noting that it is a

panel decision not binding on this en banc Court. See Dis. Op.,

infra, at 82–83 (Sloviter, J., dissenting). That does not make the

case incorrect, however. I believe that Mobley is “good

law”—if only because of binding Supreme Court precedent.

61

model due process analysis under McMillan. There, the

defendant had been acquitted of two state-law murder charges

but then was prosecuted on a federal firearms offense. On

conviction of the federal charge, the Government successfully

enhanced the defendant’s sentence based on proof by a

preponderance of the evidence that in fact he had committed the

state-law murders with the firearm that was the subject of his

federal conviction. The District Court sentenced the defendant

to life in prison pursuant to the then-mandatory Guidelines.

The First Circuit reversed. Id. 172–74. Significantly, the

court cited no single reason. As an initial matter, the base

offense level in Lombard had been calculated, in accordance

with the Guidelines, “as if [the defendant’s] offense of

conviction had been murder.” Id. at 177. This, combined with

no statutory maximum for the underlying offense, took the

Guidelines range from 262–327 months in prison to mandatory

life imprisonment—which the court characterized as

“punishment on an entirely different order of severity.” Id. at

178. Moreover, not only did the enhancing conduct also

constitute separate crimes, the defendant had already been

acquitted of them. “Without impugning the principle that

acquitted conduct may be considered in determining a

defendant’s sentence,” the procedural history in Lombard made

clear that the Government had intended from the beginning to

use a conviction on the federal firearms charge to accomplish

what the state-law murder charges had not. Id. at 178–80. The

First Circuit then concluded,

Given the magnitude of the sentence

“enhancement,” the seriousness of the

“enhancing” conduct in relation to the offense of

62

conviction, and the seemingly mandatory

imposition of the life sentence, this summary

process effectively overshadowed the firearms

possession charge and raises serious questions as

to the proper allocation of the procedural

protections attendant to trial versus sentencing.

We would be hard put to think of a better example

of a case in which a sentence “enhancement”

might be described as a “tail which wags the dog”

of the defendant’s offense of conviction.

Id. at 180 (citations omitted).

Mobley’s and Lombard’s applications of McMillan

demonstrate that the focus of a proper McMillan analysis is not

only whether an enhancing fact constitutes a separate crime, but,

more broadly, whether that fact “constitute[s] the primary

conduct for which [the defendant] is being punished.” Mobley,

956 F.2d at 459 (emphasis added); see also Lombard, 72 F.3d at

178 (describing the enhancing facts—the murders—as having

been “treated as the gravamen of the offense”). My dissenting

colleagues’ suggested due process standard (focusing only on

the “separate crime” concept) is, therefore, both too broad and

too narrow: it would require a heightened burden of proof in

more cases than Supreme Court precedent currently supports

(i.e., all “separate crime” enhancements), but at the same time

would fail to require it in certain deserving cases (i.e., where

63

“the tail wags the dog,” in that the effect of the enhancement is

too severe).31

31

Judge McKee reconciles McMillan with Apprendi—and

thereby escapes its import in this case—with a “conduct” versus

“crime” dichotomy he perceives in Supreme Court precedent.

He argues that the difference between McMillan on the one

hand, and Apprendi on the other, is that the former approved of

a traditional, conduct-related sentencing factor whereas the latter

disapproved of a sentencing factor that was also a separate

crime. See Dis. Op., infra, at Part I.B (McKee, J., dissenting).

I respectfully disagree with this assessment. Just as in

McMillan, neither in Apprendi nor any of the Supreme Court

cases that followed it could a defendant have been sent to jail

solely upon a finding (by a jury or otherwise) of the sentencing

factor at issue. See Apprendi, 530 U.S. at 468–69 (“purposeful

intimidation”); see also Cunningham, 2007 WL 135687, at *5

(“vulnerable victim” and “serious danger to community”);

Booker, 543 U.S. at 227 (drug quantity); Blakely, 542 U.S. at

300 (“deliberate cruelty”); Ring, 536 U.S. at 592–93

(“aggravating circumstances” for death penalty eligibility). Not

only did the sentencing schemes invalidated in those cases rely

on factors that were not separate crimes, those factors were also

of the traditional, conduct-related type that Judge McKee

approves. Rather, the dispositive distinction between the

Apprendi cases and McMillan is that the former dealt with

sentencing factors that push sentences over statutory maximums,

whereas the latter dealt with sentencing factors that only

operated below those maximums. Because the sentencing factor

at issue here is of this second variety, McMillan controls this

64

Further increasing my discomfort with joining my

colleagues in dissent is the Supreme Court’s holding in United

States v. Watts. There, the Court reversed a panel of the Ninth

Circuit Court of Appeals that had held it a violation of the

Double Jeopardy Clause of the Fifth Amendment for sentencing

courts to factor into a defendant’s sentence the conduct for

which he had been acquitted. See Watts, 519 U.S. at 149. The

Court relied partly on the differing burdens of proof during trial

and sentencing to reject the Ninth Circuit’s contention that the

acquittal had some preclusive effect, restating its holding in

McMillan that “application of the preponderance standard at

sentencing generally satisfies due process.” Id. at 155–56.

Continuing the discussion, the Court said:

[A]n acquittal in a criminal case does not preclude

the Government from relitigating an issue when it

is presented in a subsequent action governed by a

lower standard of proof. The Guidelines state that

it is appropriate that facts relevant to sentencing

be proved by a preponderance of the evidence,

and we have held that application of the

preponderance standard at sentencing generally

satisfies due process. We acknowledge a

divergence of opinion among the Circuits as to

whether, in extreme circumstances, relevant

conduct that would dramatically increase the

sentence must be based on clear and convincing

evidence. The cases before us today do not

case. See supra Part II.A & n.11.

65

present such exceptional circumstances, and we

therefore do not address that issue. We therefore

hold that a jury’s verdict of acquittal does not

prevent the sentencing court from considering

conduct underlying the acquitted charge, so long

as that conduct has been proved by a

preponderance of the evidence.

Id. at 156–57 (footnote, citations, and internal quotation marks

omitted) (citing, among other cases, Lombard, 72 F.3d at

186–87, and Kikumura, 918 F.2d at 1102). Though Watts does

not address directly the due process question before us, this

passage amply demonstrates its relevance. The issue in Watts

involved the sentencing treatment of a separate offense, and I

find it instructive that the Court did not express any special

concern about that fact during the course of its McMillan and

Kikumura discussion.

Since the Supreme Court decided Booker, several district

courts have called into question the continuing viability of

Watts.32 However, every court of appeals to have spoken on the

32

See, e.g., United States v. Ibanga, 454 F. Supp. 2d 532,

536–38 (E.D. Va. 2006); United States v. Coleman, 370 F. Supp.

2d 661, 668–73 (S.D. Ohio 2005); United States v. Pimental,

367 F. Supp. 2d 143, 149–53 (D. Mass. 2005); United States v.

Gray, 362 F. Supp. 2d 714, 721–22 (S.D. W. Va. 2005); United

States v. Carvajal, No. 04 CR 222AKH, 2005 WL 476125, at *5

(S.D.N.Y. Feb. 22, 2005).

66

question so far has held that Watts remains good law.33 Justice

Stevens’s merits opinion in Booker characterized Watts as

having “presented a very narrow question regarding the

interaction of the Guidelines with the Double Jeopardy Clause,”

Booker, 543 U.S. at 240 n.4, and was able to avoid dealing with

its holding. But as Judge McKee’s meticulous parsing of that

case indicates, see Dis. Op., infra, Part II (McKee, J.,

dissenting), doing the same here is considerably harder.34

33

See United States v. Mercado, No. 05-50624, ___ F.3d

___, 2007 WL 136702 (9th Cir. Jan. 22, 2007); United States v.

Gobbi, 471 F.3d 302, 313–14 (1st Cir. 2006); United States v.

Dorcely, 454 F.3d 366, 371–73 (D.C. Cir. 2006); United States

v. High Elk, 442 F.3d 622, 626 (8th Cir. 2006); United States v.

Vaughn, 430 F.3d 518, 525–27 (2d Cir. 2005); United States v.

Price, 418 F.3d 771, 787–88 (7th Cir. 2005); United States v.

Magallanez, 408 F.3d 672, 684–85 (10th Cir. 2005); United

States v. Duncan, 400 F.3d 1297, 1304–05 (11th Cir. 2005).

34

The very mention in Booker of Watts’s narrow holding

would seem to indicate that it is still binding on lower courts.

See Booker, 543 U.S. at 240 n.4. But even if the specific

holding of Watts survives the Supreme Court’s Apprendi

jurisprudence, the practice of considering acquitted conduct

might not. That is, even if considering acquitted conduct for

sentencing purposes does not violate the Double Jeopardy or

Due Process Clause of the Fifth Amendment, doing so might

still violate the jury right of the Sixth Amendment as expounded

by Apprendi and its progeny. Our Court has not yet spoken on

this issue, but because Grier only presses Fifth Amendment

67

Therefore, in light of Watts and my prior discussion of

McMillan, I reluctantly cannot accept my dissenting colleagues’

position as consistent with controlling Supreme Court precedent.

According to that precedent, due process requires only that

sentencing factors (as denominated by Congress), including

those that also constitute separate crimes, be proven at

sentencing by a preponderance of the evidence unless they

become the “tail which wags the dog of the substantive

offense.”

* * * * *

In this case, nobody—not even Grier himself—contends

that the “tail” of aggravated assault has wagged the “dog” of

firearms possession.35 The District Court calculated the initial

recommended Guidelines range at 84–105 months in prison.

Though application of the aggravated-assault enhancement

raised the applicable base offense level by four points, the

arguments, I leave it for another day.

35

I assume here that the facts are as found by the District

Court. However, I support the majority’s remand for a fuller

exploration and explanation of these findings and of Grier’s

ultimate sentence, see Maj. Op., supra, Parts II.B & II.C,

particularly in light of the concerns raised by Judge Sloviter’s

dissent, see Dis. Op., infra, Part III. In joining Parts II.B. and

II.C of the majority opinion, I do not understand it to be an

“affirmation of the District Court’s finding that Grier committed

an aggravated assault,” as Judge Sloviter believes. Dis. Op.,

infra, at 107 (Sloviter, J., dissenting).

68

District Court granted a departure of two levels because it

determined that Grier was not wholly responsible for the

circumstances that led to the assault (and thus the enhancement).

This left an advisory range of 100–120 months, after which the

District Court imposed a sentence of 100 months, which was

within the initial, unenhanced advisory Guidelines range. The

obvious conclusion is that Grier was not punished primarily for

aggravated assault. See Mobley, 956 F.2d at 459. Finding by a

preponderance of the evidence that Grier committed aggravated

assault did not result in a due process violation.

Though someday, as I argue it should, the Constitution

may be interpreted to require that all facts the law deems worthy

of additional punishment be found by a jury beyond a reasonable

doubt (or, at the least, that a judge do so by that same standard),

binding Supreme Court precedent precludes advancing such a

position now. See supra Part I. To do so would chase the

shadow of Apprendi and Blakely while ignoring McMillan,

which requires only that sentencing factors be proven by a

preponderance of the evidence in most cases. Disturbingly, this

is so even if those facts also constitute separate crimes, as here.

In basing my decision on McMillan and its “tail that wags

the dog” metaphor, I have not ignored the criticism it has

received as a rule of law—even from the Supreme Court that

established it. See, e.g., Blakely, 542 U.S. at 307, 308 (noting

that “[t]he subjectivity of the standard is obvious” and

describing it as “manipulable”). The difficulties in applying it,

as Judge McKee cogently demonstrates, are undeniable. See

Dis. Op., infra, Part III (McKee, J., dissenting). Its primary

virtue, however, is that it properly frames the inquiry: “For what

conduct is the defendant actually being sentenced?”

69

Moreover—and more importantly—McMillan’s rule is still

binding on the lower courts.

It may be that the Justices will one day reconsider

McMillan and apply Apprendi’s bright-line rule to Fifth

Amendment questions, just as the majority here has done. Our

job, though, is not to place bets on the direction of constitutional

doctrine and gamble with defendants’ constitutional rights.

Even if it were, the majority cites nothing to indicate that the

Supreme Court would adopt its position, which only diminishes

a defendant’s constitutional protections. Indeed, a faithful

reading of the entire Apprendi line of cases—including Blakely,

Booker, and Cunningham—leads to the opposite conclusion.

See Booker, 543 U.S. at 236–37 (noting that modern sentencing

practices have “forced the Court to address the question how the

right of jury trial could be preserved, in a meaningful way

guaranteeing that the jury would still stand between the

individual and the power of the government”); see also

Cunningham, 2007 WL 135687, at *14 (“Booker’s remedy for

the Federal Guidelines . . . is not a recipe for rendering our Sixth

Amendment case law toothless.”). In this respect, Judge

Sloviter and Judge McKee eventually may be proven correct. I

hope that day comes, but it is not yet this one.

Before concluding, I pause to stress that the majority

holds only that the reasonable-doubt standard is not required by

the Fifth Amendment when finding Guidelines facts. The

Court’s ruling applies only to the calculation of the advisory

Guidelines range at step one of the sentencing process that we

set out in United States v. Gunter, 462 F.3d 237, 247 (3d Cir.

2006). Significantly, nothing about the majority’s ruling

prevents a sentencing court from taking into account the strength

70

of the evidence (or lack thereof) supporting a Guidelines

enhancement when it considers the § 3553(a) factors at Gunter’s

step three—especially an enhancement that also constitutes a

separate crime.36 If it were otherwise, our holding today would

not be tenable; for then the Guidelines would not be truly

advisory, and Apprendi, Blakely, and Justice Stevens’s merits

opinion in Booker would come into full force. We must be ever

careful in our reasonableness review, therefore, not to restrict a

sentencing court’s discretion solely on the basis of the

36

See 18 U.S.C. § 3553(a); Gunter, 462 F.3d at 247–49;

see also Reuter, 463 F.3d at 793 (“A judge might reasonably

conclude that a sentence based almost entirely on evidence that

satisfied only the normal civil standard of proof would be

unlikely to promote respect for the law or provide just

punishment for the offense of conviction. That would be a

judgment for the sentencing judge to make and we would

uphold it so long as it was reasonable in the circumstances.”);

United States v. Dazey, 403 F.3d 1147, 1177 (10th Cir. 2005)

(“District courts might reasonably take into consideration the

strength of the evidence in support of sentencing enhancements,

rather than (as in the pre-Booker world) looking solely to

whether there was a preponderance of the evidence, and

applying Guidelines-specified enhancements accordingly.”); cf.

United States v. Vaughn, 430 F.3d 518, 527 (2d Cir. 2005)

(“[D]istrict courts should consider the jury’s acquittal [on

another charge] when assessing the weight and quality of the

evidence presented by the prosecution and determining a

reasonable sentence.”).

71

Guidelines, lest we recreate an unconstitutional sentencing

scheme.37

On February 20, 2007, the Supreme Court will hear two

cases addressing the Guidelines’ proper role in post-Booker

criminal sentencing. See United States v. Rita, 177 Fed. Appx.

357, 2006 WL 1144508 (4th Cir. 2006), cert. granted, 75

U.S.L.W. 3243 (U.S. Nov. 3, 2006) (No. 06-5754) (addressing

a presumption of reasonableness for within-Guidelines

sentences); United States v. Claiborne, 439 F.3d 479 (8th Cir.

37

One significant danger in this regard comes from

presuming the reasonableness of a sentence within the

Guidelines range. See Stephen R. Sady, Guidelines Appeals:

The Presumption of Reasonableness and Reasonable Doubt, 18

F ED. S ENT. R. 170 (2006). Nevertheless, seven courts of appeals

have chosen to walk the constitutional line and formally accept

such a presumption. See United States v. Dorcely, 454 F.3d 366

(D.C. Cir. 2006); United States v. Green, 436 F.3d 449 (4th Cir.

2006); United States v. Alonzo, 435 F.3d 551 (5th Cir. 2006);

United States v. Williams, 436 F.3d 706 (6th Cir. 2006); United

States v. Mykytiuk, 415 F.3d 606 (7th Cir. 2005); United States

v. Lincoln, 413 F.3d 716 (8th Cir. 2005); United States v. Kristl,

437 F.3d 1050 (10th Cir. 2006). Our Court, along with three

others, has prudently not adopted this constitutionally doubtful

rule. See United States v. Cooper, 437 F.3d 324 (3d Cir. 2006);

see also United States v. Jiménez-Beltre, 440 F.3d 514 (1st Cir.

2006) (en banc); United States v. Fernandez, 443 F.3d 19 (2d

Cir. 2006); United States v. Talley, 431 F.3d 784 (11th Cir.

2005).

72

2006), cert. granted, 75 U.S.L.W. 3243 (U.S. Nov. 3, 2006)

(No. 06-5618) (addressing the required justification for

substantial Guidelines variances). I can only hope that with

these cases and others—in addition to harmonizing the

“discordant symphony” 38 that has developed in the lower courts

on post-Booker sentencing issues—the Supreme Court will

continue the reexamination of criminal sentencing it only

recently began. The principles that begat Apprendi and Blakely

are worthy of continued adherence. It is only “a matter of

simple justice.” Apprendi, 530 U.S. at 476.

SLOVITER, Circuit Judge, dissenting, with whom Judge

McKee joins.

It is ironic that a Supreme Court decision that upheld two

lower court decisions holding that sentences that were based on

additional facts found by the sentencing judge by a

preponderance of the evidence violated the defendants’ Sixth

Amendment rights, United States v. Booker, 543 U.S. 220, 226

(2005), a decision that bolstered an important constitutional

right, should be viewed by the majority to authorize

enhancement of a defendant’s sentence based on the sentencing

judge’s finding by a preponderance of evidence that the

defendant committed a separate offense for which he was never

38

See Booker, 543 U.S. at 312 (Scalia, J., dissenting in

part) (“What I anticipate will happen is that ‘unreasonableness’

review will produce a discordant symphony of different

standards, varying from court to court and judge to judge . . . .”).

73

tried or convicted, a decision that erodes a well-established

constitutional right. It is even more ironic that the majority does

so in the face of the Supreme Court’s most recent opinion in

Cunningham v. California, No. 05-6551, 2007 WL 135687

(Jan. 22, 2007), where the Court reaffirmed its holdings in a

series of cases that under the Sixth Amendment it is not the trial

judge but the jury that must make the relevant finding of fact

upon which a sentencing enhancement is based, and that the jury

must make that finding beyond a reasonable doubt.

The majority affirms the District Court’s sentence based

on its finding by a preponderance of the evidence that Grier

committed aggravated assault under Pennsylvania law even

though Grier pled guilty only to possession of a firearm by a

convicted felon and consistently denied that he committed an

aggravated assault. That this court should adopt that view of

Booker even though the Booker constitutional opinion (authored

by Justice Stevens) was directed to the protection of a

defendant’s Sixth Amendment right to a jury determination is

simply astonishing.39 The majority’s cramped view of the Sixth

Amendment has now been rejected by Cunningham, a case the

majority marginalizes in a footnote.

I cannot accept the majority’s abnegation of the Fifth

Amendment’s imperative that a criminal defendant is entitled to

39

The majority does not deign to respond to Judge

Ambro’s devastating attack on its reasoning in his concurring

opinion. I believe that my references to Cunningham in my

response to the majority apply equally to the concurring

opinion’s reference to that case.

74

the determination of his or her guilt beyond a reasonable doubt.

The majority so holds based on its expansive interpretation of

language in the Booker opinion dealing with the remedy for the

Sixth Amendment issue (authored by Justice Breyer). Neither

of the Supreme Court’s Booker decisions discussed the Fifth

Amendment nor did they suggest that it had no role in

sentencing. Yet the majority’s decision abrogates one of the

most important, if not the most important, of the rights that the

Constitution affords criminal defendants: the right to be found

guilty only by a finding beyond a reasonable doubt.

I.

The history and rationale of a criminal defendant’s right

to a determination that s/he be convicted only after a jury

determination that the defendant is guilty of the crime charged

beyond a reasonable doubt needs no extended discussion. As

the Supreme Court has stated, a Fifth Amendment challenge,

like a Fourteenth Amendment challenge, involves a

constitutional protection of “surpassing importance: the

proscription of any deprivation of liberty without ‘due process

of law.’” United States v. Apprendi, 530 U.S. 466, 476 (2000).

Although the Constitution does not explicitly require that a

finding of guilt be made under a beyond-a-reasonable-doubt

standard, the Supreme Court made that explicit when it held:

“[T]he Due Process Clause protects the accused against

conviction except upon proof beyond a reasonable doubt of

every fact necessary to constitute the crime with which he is

charged.” In re Winship, 397 U.S. 358, 364 (1970).

The rationale for requiring that rigorous standard of proof

was discussed by Justice John Marshall Harlan II with his

75

incomparable analytic reasoning in his concurring opinion in In

re Winship where he expounded on the difference between the

preponderance-of-the-evidence standard of proof and the

beyond-a-reasonable-doubt standard. He explained that “even

though the labels used for alternative standards of proof are

vague and not a very sure guide to decisionmaking, the choice

of the standard for a particular variety of adjudication does . . .

reflect a very fundamental assessment of the comparative social

costs of erroneous factual determinations.” Id. at 369-70. He

further explained that “a standard of proof represents an attempt

to instruct the factfinder concerning the degree of confidence

our society thinks he should have in the correctness of factual

conclusions for a particular type of adjudication.” Id. at 370.

He continued that although the two phrases “are quantitatively

imprecise, they do communicate to the finder of fact different

notions concerning the degree of confidence he is expected to

have in the correctness of his factual conclusions.” Id.

Justice Harlan concluded that whereas a preponderance-

of-the-evidence standard seems particularly appropriate in civil

cases between two parties for money damages where the

factfinder need determine that the existence of a fact is more

probable than its nonexistence, the criminal case stands on a

different footing. Recognizing that there is always a margin of

error in factfinding, he quoted from an earlier opinion in which

Justice Brennan stated that “‘[w]here one party has at stake an

interest of transcending value – as a criminal defendant his

liberty – this margin of error is reduced as to him by the process

of placing on the other party the burden . . . of persuading the

factfinder at the conclusion of the trial of his guilt beyond a

76

reasonable doubt.’” Id. at 372 (quoting Speiser v. Randall, 357

U.S. 513, 525-26 (1958)).

The entitlement to proof beyond a reasonable doubt is “as

equally well-founded” as the right to a jury determination and is

based in the common law. See Apprendi, 530 U.S. at 478

(noting that the “demand for a higher degree of persuasion in

criminal cases was recurrently expressed from ancient times . .

. . and is now accepted in the common law jurisdictions as the

measure of persuasion by which the prosecution must convince

the trier of all essential elements of guilt”) (quotation marks and

citation omitted). And the right to jury trial “has been enshrined

since the Magna Carta.” Booker, 543 U.S. at 239.

The question whether the Fifth Amendment right to due

process requires that the fact that formed the basis for Grier’s

four-level sentencing enhancement, i.e., that he committed a

separate felony while possessing the firearm, be found beyond

a reasonable doubt, is a question of law and is therefore subject

to plenary review.40 See United States v. Williams, 235 F.3d

858, 861 (3d Cir. 2000).

Reiterating established principles of constitutional law,

the Court in Booker, quoting Blakely v. Washington, 542 U.S.

296, 301 (2004), stated that it is “the defendant’s right to have

40

Grier also alleges that we may review his sentence

because it is “unreasonable.” A sentence imposed in violation

of Grier’s Fifth Amendment rights would be imposed in

violation of the law and, therefore, unreasonable. United States

v. Cooper, 437 F.3d 324, 327–28 (3d Cir. 2006).

77

the jury find the existence of ‘any particular fact’ that the law

makes essential to his punishment,” Booker, at 543 U.S. at 232,

and “[i]f a State makes an increase in a defendant’s authorized

punishment contingent on the finding of a fact, that fact – no

matter how the State labels it – must be found by a jury beyond

a reasonable doubt.” Id. at 231, quoting Ring v. Arizona, 536

U.S. 584, 602 (2002). If there had been any doubt of the

applicability of the beyond-a-reasonable-doubt standard to

sentencing enhancements, it should have been put to rest by the

language of the Cunningham Court when it said, “This Court

has repeatedly held that, under the Sixth Amendment, any fact

that exposes a defendant to a greater potential sentence must be

found by a jury, not a judge, and established beyond a

reasonable doubt, not merely by a preponderance of the

evidence.” Cunningham, 2007 WL 135687, at *7 (emphasis

added).

Disregarding the uninterrupted line of decisions that

underlay those two principles, the majority approves the

conclusion of the District Court that the burden of proof to be

applied to its determination that Grier committed an aggravated

assault was preponderance of the evidence. Maj. op. at 25. The

majority states that “[t]his standard is suggested by the

Guidelines [citing not the Guidelines but a commentary in the

U.S. Sentencing Guidelines Manual that does not support the

proposition], is not precluded by the Fifth or Sixth Amendments,

see Booker, 543 U.S. at 259 (‘the remainder of the act functions

independently’), and has been approved by this Court, see, e.g.,

United States v. Mobley, 956 F.2d 450, 455 (3d Cir. 1992).”

Maj. op. at 24. The majority errs on all three points. If these

purported supporting authorities do not support the majority’s

78

adoption of the preponderance-of-the-evidence standard, the

majority’s decision is without any support or precedent, the

conclusion to which I am drawn.

The majority’s statement that its adoption of the

preponderance-of-the-evidence standard “is suggested by the

Guidelines,” its first purported authority, is just flat out wrong.

There is no Sentencing Guideline that addresses the issue of the

standard of proof in a criminal case. Indeed, that would be

beyond the authority granted to the Sentencing Commission.

In the Booker constitutional opinion, the Court, asserting

that it would be unconstitutional for the Sentencing Commission

to define criminal elements, interpreted the Sentencing Reform

Act as authorizing the Commission only “to identify the facts

relevant to sentencing decisions and to determine the impact of

such facts on federal sentences.” Booker, 543 U.S. at 241-42.

In so holding, the Court referred to the decision in Mistretta, 488

U.S. 361, 377 (1989), where it rejected a challenge to the

delegation of that authority. The Booker opinion construed

Mistretta as “premised on an understanding that the

Commission, rather than performing adjudicatory functions,

instead makes political and substantive decisions.” Booker, 543

U.S. at 242. The Booker opinion stated that in Mistretta it noted

that “the promulgation of the guidelines was much like other

activities in the Judicial Branch, such as the creation of the

Federal Rules of Evidence, all of which are non-adjudicatory

activities.” Id. Thus, the delegation to the Commission did not

encompass a definition of the elements of a criminal offense and

adjudicatory functions. The standard of proof, of course, is an

adjudicatory function, not delegated to the Commission.

Booker, 543 U.S. at 243 (quoting Mistretta).

79

The quotation included in the majority’s opinion which

it believes supports its standard of proof is from the

Commentary to Guideline § 6A1.3, a Policy Statement dealing

with Resolution of Disputed Factors. One would ordinarily

assume that if the issue of standard of proof for disputed factors

appeared somewhere in the Guidelines, this would be the

appropriate place. But there is nothing in the text of that

Guideline/Policy Statement that addresses the standard of proof.

Nor, if read carefully, does the sentence of the statement in the

Commentary quoted by the majority address the issue of the

required standard of proof of a criminal offense. Instead it is

directed only to the issue of “resolving disputes regarding

application of the guidelines to the facts of a case.” The entirety

of the sentence at issue is repeated in the margin.41 Because

there is no Guideline applicable to the standard of proof of a

criminal offense, there is no “dispute regarding application of

[any] guideline[]” and the sentence on which the majority relies

is inapplicable.

What is of particular interest and relevance is the

discussion of this sentence in the separate opinion of Justice

Thomas in Booker, where he states,

The commentary to § 6A1.3 states that the

Commission believes that use of a preponderance

41

“The Commission believes that use of a preponderance

of the evidence standard is appropriate to meet due process

requirements and policy concerns in resolving disputes

regarding application of the guidelines to the facts of a case.”

U.S. Sentencing Guidelines Manual § 6A1.3 cmt. (2006).

80

of the evidence standard is appropriate . . . . The

Court's holding today corrects this mistaken

belief. The Fifth Amendment requires proof

beyond a reasonable doubt, not by a

preponderance of the evidence, of any fact that

increases the sentence beyond what could have

been lawfully imposed on the basis of facts found

by the jury or admitted by the defendant.

543 U.S. at 319 n.6 (Thomas, J., dissenting in part) (emphasis

added). Cf. United States v. Pimental, 367 F. Supp. 2d 143, 153

(D. Mass. 2005) (“Certain facts . . . . assume inordinate

importance in the sentencing outcome. So long as they do, they

should be tested by our highest standard of proof.”).

Justice Thomas is not the only one to have commented

critically on the statement in the Guideline commentary. See,

e.g., Note, Sentencing After Booker: The Impact of Appellate

Review on Defendants’ Rights, 24 Yale L. & Pol’y Rev. 173,

198-99 (2006) (“Although the Supreme Court has countenanced

the preponderance standard at sentencing, the Court has never

required the application of that standard. . . . Moreover, this

Guideline has not been officially re-examined by Congress since

Apprendi, Blakely, and Booker were decided. Thus, one should

not rely on this commentary for the strong proposition that a

heightened standard of proof is impermissible.”); see also

Douglas A. Berman, Tweaking Booker: Advisory Guidelines in

the Federal System, 43 Hous. L. Rev. 341, 387 (2006)

(“Notably, the Sentencing Reform Act does not speak to the

burden of proof issue at all. And though the commentary to

Guidelines’ § 6A1.3 states that the Commission ‘believes that

use of a preponderance of the evidence standard is appropriate

81

. . . [’] in resolving factual disputes, this provision is overdue for

reexamination in the wake of the Supreme Court's decisions in

Apprendi, Blakely, and Booker.”).

I leave Booker, the heart of the majority’s decision, for

later discussion and turn to the majority’s third proffered

authority for its adoption of the preponderance-of-the- evidence

standard for proof of an offense, i.e., United States v. Mobley,

956 F.2d 450 (3d Cir. 1992). The issue in that case was whether

the Government, which sought to enhance defendant’s sentence

following conviction of possession of a firearm by a convicted

felon because the gun was stolen, must show defendant knew

the gun was stolen to enhance his sentence. In a two to one

decision, with Judge Mansmann dissenting, we held that the

then-applicable Guideline, § 2K2.1(b)(2) (authorizing

enhancement based on fact that the gun was stolen), did not

have a scienter element. The majority rejected Judge

Mansmann’s position that a sentencing enhancement under the

Guidelines may not be substituted for a criminal conviction

consistent with due process.

The facts in Mobley are, on their face, distinguishable

from Grier’s situation because the nexus in Mobley between

possession of the weapon and its being a stolen weapon clearly

satisfied the relevant Guideline prerequisite that the stolen gun

was in connection with the offense of conviction. But I need not

rely on that distinction. Mobley was a panel decision. It is our

tradition that a panel decision does not bind the court sitting en

banc. As we stated in an earlier en banc decision, “Because we

are now en banc, neither the language nor the holdings of those

panel decisions bind us here.” Orson, Inc. v. Miramax Film

Corp., 189 F.3d 377, 380 (3d Cir. 1999) (en banc); see also

82

Mariana v. Fisher, 338 F.3d 189, 201 (3d Cir. 2003); Halderman

v. Pennhurst State School & Hospital, 673 F.2d 628, 641 n.1 (3d

Cir. 1982) (“To be sure, this court, sitting en banc, [may]

overrule . . . panel decisions.”) (en banc) (Garth, J., concurring

in part and dissenting in part). It follows that Mobley, one of the

majority’s three proffered authorities, cannot serve as precedent

for the majority’s adoption of the preponderance-of-the-

evidence standard.

II.

I turn then to Booker, on which the majority places its

principal reliance for its holding that “[o]nce a jury has found a

defendant guilty of each element of an offense beyond a

reasonable doubt, he has been constitutionally deprived of his

liberty and may be sentenced up to the maximum sentence

authorized under the United States Code without additional

findings beyond a reasonable doubt.” Maj. op. at 10. Neither of

the Booker opinions ever says or suggests such a proposition,

and I believe it is seriously flawed, certainly as applied in this

case.

Although Grier pled guilty to possession of a firearm by

a convicted felon (the guilty plea equivalent to a jury finding),

no jury found him guilty of aggravated assault, a different and

independent offense. Grier’s guilty plea to one offense (for

which he would have been entitled to the beyond-a-reasonable

doubt standard) cannot justify diminution of the applicable

standard of proof applied by a judge for a separate offense.

I know of no authority that contests that the beyond-a-

reasonable doubt standard is as equally applicable to a judge

who sits as the trier of fact as to a jury. In In re Winship, the

83

Court held that a provision of the New York Family Court Act

that authorized a judge to determine by a preponderance of the

evidence that a juvenile was delinquent – that is, guilty of a

crime – violated the juvenile’s due process rights. In reversing

the decision of the New York Court of Appeals that had

sustained the constitutionality of the Act, Justice Brennan noted

that “the requirement of proof beyond a reasonable doubt has

this vital role in our criminal procedure for cogent reasons. The

accused during a criminal prosecution has at stake interests of

immense importance, both because of the possibility that he may

lose his liberty upon conviction and because of the certainty that

he would be stigmatized by the conviction.” 397 U.S. at 363.

Can the majority really be suggesting that the Due

Process Clause, with its requirement of proof beyond a

reasonable doubt, is never applicable to any sentencing issue?

In Jones v. United States, 526 U.S. 227 (1999), the Court

vacated a sentence imposed upon a criminal defendant who was

found guilty of violating the federal carjacking statute, 18

U.S.C. § 2119. Section 2119 makes carjacking a crime, and

then in three subsections sets forth what the Court held are three

distinct offenses with three maximum penalties. See id. at 229.

Subsection 1 provides that the penalty for carjacking is a fine or

imprisonment of not more than 15 years or both; Subsection 2

provides that if serious bodily injury results, the penalty is a fine

or imprisonment of not more than 25 years or both; Subsection

3 provides that if death results, the penalty is a fine or

imprisonment for any number of years up to life or both.

Serious bodily injury was not pled in the Jones indictment

nor did the district court instruct on that issue. Nonetheless, the

district court sentenced Jones to 25 years on the carjacking,

84

finding by a preponderance of the evidence that there was

serious bodily injury. The Jones factual scenario does not differ

markedly from that presented in this case.

When the Jones case reached the Supreme Court, the

Court rejected the Government’s argument that the fact of

serious bodily harm was merely a sentencing factor and instead

construed § 2119 “as establishing three separate offenses by the

specification of distinct elements, each of which must be

charged by indictment, proven beyond a reasonable doubt, and

submitted to a jury for its verdict.” Id. at 252. The Court found

that permitting the judge to make findings regarding serious

bodily harm to the victim by a preponderance of the evidence

and thereby increasing the sentencing range for that crime would

present a serious due process issue. See id. at 243.

The majority states that Jones was a statutory

interpretation case, not a statement of constitutional doctrine,

and suggests that the holding in Jones has no relevance to the

issue before us. That reading of Jones is belied by the rationale

for the opinion given by the Supreme Court itself which

discussed at length the “‘grave and doubtful constitutional

questions’” id. at 239 (quoting U.S. ex rel. Attorney Gen. v. Del.

& Hudson Co., 213 U.S. 366, 408 (1909)),42 that would arise

42

The “constitutional doubt rule” referred to in Jones

instructs: “the rule, repeatedly affirmed, that ‘where a statute is

susceptible of two constructions, by one of which grave and

doubtful constitutional questions arise and by the other of which

such questions are avoided, our duty is to adopt the latter.’”

Jones, 526 U.S. at 239 (quoting Del. & Hudson Co., 213 U.S. at

85

were it to interpret the statute to treat the finding of “serious

bodily harm” as a sentencing factor to be found by the judge

rather than as an element of the offense that “must be charged

in the indictment, submitted to a jury, and proven by the

Government beyond a reasonable doubt.” Jones, 526 U.S. at

232.

After citing In re Winship, referred to above, the Jones

Court reviewed the holdings in Mullaney v. Wilbur, 421 U.S.

684 (1975), Patterson v. New York, 432 U.S. 197 (1977), and

McMillan v. Pennsylvania, 477 U.S. 79 (1986), focusing on the

constitutional issues they presented. Jones, 526 U.S. at 240-42.

In a footnote, the Court restated the principles that underlay its

view that the carjacking statute, as construed by the

Government, might violate the Constitution. It stated, inter alia:

“The constitutional safeguards that figure in our analysis

concern not the identity of the elements defining criminal

liability but only the required procedures for finding the facts

that determine the maximum permissible punishment; these are

the safeguards going to the formality of notice, the identity of

the factfinder, and the burden of proof.” Id. at 243 n.6

(emphasis added).

The majority’s description of the discussion of

constitutional rights in Jones as “in the subsidiary context of the

interpretative canon of avoidance,” Maj. op. at 21, ignores the

fact that the Court itself in Jones gave as the raison d’être of its

statutory interpretation “the serious constitutional questions,” id.

at 251, that would arise under the Government’s interpretation

408).

86

of the statutory language. In contrast to the majority’s relegation

of Jones to mere statutory interpretation and “not a statement of

constitutional doctrine” regarding “the right to proof beyond a

reasonable doubt,” Maj. op. at 21, I note that this very language

in Jones identifying “the constitutional safeguards,” specifically

including “the burden of proof” which led the Jones Court to its

statutory construction, is quoted at length in the Booker

constitutional opinion. Booker, 543 U.S. at 242. As the Court

stated in Booker, a contrary holding in Jones “would have

reduced the jury’s role ‘to the relative importance of low-level

gatekeeping.’” Booker, 543 U.S. at 230 (quoting Jones, 526 U.S.

at 244).43

Jones, with its affirmation of the principle that due

process protections are required for offense-defining elements,

was followed by Apprendi, a decision that even the majority

states governs the constitutional issue before us. Maj. op. at 23.

It states:

This is a constitutional case, governed by the rule

of Apprendi: the rights to a jury trial and to proof

beyond a reasonable doubt attach to those facts

that increase the statutory maximum punishment

to which the defendant is exposed. 530 U.S. at

490.

43

Any suggestion by the majority and the concurrence that

Jones is no longer viable or relevant following Booker is belied

by the prominent references to its holding in the opinion in

Shepard v. United States, 544 U.S. 13, 24-26 (2005). I will

discuss Shepard in more detail infra.

87

Maj. op. at 23.

In Apprendi, the Court distinguished between sentencing

factors which a district court may find by a preponderance of the

evidence when exercising its discretion to sentence within a

given range, and those sentencing determinations for which due

process demands a greater degree of procedural protection. The

Court distinguished the determinations of sentencing factors,

which it characterized as “factors relating both to the offense

and offender,” Apprendi, 530 U.S. at 481, from the

determinations of what are usually characterized as elements of

the offense, to which greater due process protections apply. As

the Court stated:

If a defendant faces punishment beyond that

provided by statute when an offense is committed

under certain circumstances but not others, it is

obvious that both the loss of liberty and the

stigma attaching to the offense are heightened; it

necessarily follows that the defendant should not

– at the moment the State is put to proof of those

circumstances – be deprived of protections that

have, until that point, unquestionably attached.

Id. at 484.

The Court continued, “[s]ince Winship, we have made

clear beyond peradventure that Winship’s due process and

associated jury protections extend, to some degree, ‘to

determinations that [go] not to a defendant’s guilt or innocence,

but simply to the length of his sentence.’” Id. (quoting United

States v. Almendarez-Torres, 523 U.S. 224, 251 (1998) (Scalia,

J., dissenting)). The Court then explained which facts are

88

entitled to the due process protections. In writing for the

Apprendi majority on the constitutional issue, Justice Stevens

quoted from his concurring opinion in Jones, where he wrote,

“‘[I]t is unconstitutional for a legislature to remove from the

jury the assessment of facts that increase the prescribed range of

penalties to which a criminal defendant is exposed. It is equally

clear that such facts must be established by proof beyond a

reasonable doubt.’” (quoting Jones, 526 U.S. at 252-53 (Stevens,

J., concurring)).

The holding of Jones that due process protections are

required for offense-defining elements, as distinguished from

sentencing factors, was the precedent on which the Supreme

Court’s decision in Apprendi was based. Apprendi pled guilty

in state court to two counts of possession of a firearm for an

unlawful purpose, and one count of unlawful possession of an

antipersonnel bomb. Apprendi, 530 U.S. at 469-70. The State

reserved the right to seek a higher enhanced sentence on the

ground that one count of firearms possession was committed

with a biased purpose in violation of N.J. Stat. § 2C:44-3, which

was punishable by imprisonment for between ten and twenty

years. Id. at 470. After a hearing, the state trial judge found by

a preponderance of the evidence that Apprendi’s crime was

motivated by racial bias in violation of the state statute and

enhanced Apprendi’s sentence accordingly. Id. at 471. The

finding doubled the maximum range within which Apprendi

could be sentenced.

Although there was a “full evidentiary hearing” in the

New Jersey court on whether Apprendi acted with a biased

purpose, that issue was not presented to the jury. The Supreme

Court thus stated, “The question whether Apprendi had a

89

constitutional right to have a jury find such bias on the basis of

proof beyond a reasonable doubt is starkly presented.” Id. at

475-76. The Court quoted from its earlier opinion in United

States v. Gaudin, 515 U.S. 506 (1995), affirming that due

process requires, inter alia, that a criminal defendant be afforded

“‘a jury determination that [he] is guilty of every element of the

crime with which he is charged, beyond a reasonable doubt.’”

Apprendi, 530 U.S. at 477 (quoting Gaudin, 515 U.S. at 510).

The Court then noted that historically “[j]ust as the circumstance

of the crime and the intent of the defendant at the time of

commission were often essential elements to be alleged in the

indictment, so too were the circumstances mandating a

particular punishment.” Apprendi, 530 U.S. at 480.

The Apprendi Court held that the New Jersey statutory

scheme, allowing a judge to make a finding by a preponderance

of the evidence that the defendant’s “purpose” for unlawfully

possessing the weapon was to intimidate his victim on the basis

of race, was unconstitutional. Apprendi, 530 U.S. at 491-92.

The Court rejected New Jersey’s argument that the required

“motive” finding was simply a “traditional” sentencing factor.

Id. at 493-94. It continued, “[t]he degree of criminal culpability

the legislature chooses to associate with particular, factually

distinct conduct has significant implications both for a

defendant’s very liberty, and for the heightened stigma

associated with an offense the legislature has selected as worthy

of greater punishment.” Id. at 495. Distinguishing Almendarez-

Torres (which held evidence of prior convictions admissible

without further proof), the Court stated:

there is a vast difference between accepting the

validity of a prior judgment of conviction entered

90

in a proceeding in which the defendant had the

right to a jury trial and the right to require the

prosecutor to prove guilt beyond a reasonable

doubt, and allowing the judge to find the required

fact under a lesser standard of proof.

Id. at 496 (emphasis added).44

That statement alone is dispositive of this appeal. Grier’s

sentence was enhanced based on the District Judge’s finding

that Grier committed an aggravated assault despite the fact that

no jury found that he had done so and no factfinder, not even the

judge, so found beyond a reasonable doubt. The majority’s only

response to the reasoning in Apprendi set forth above, is “[l]ike

the right to a jury trial, the right to proof beyond a reasonable

doubt attaches only when the facts at issue have the effect of

increasing the maximum punishment to which the defendant is

exposed. Apprendi, 530 U.S. at 489-94. The advisory

Guidelines do not have this effect.” Maj. op. at 18-19. This, I

respectfully state, is a non sequitur. If the decisions in Shepard

v. United States, 544 U.S. 13 (2005), discussed infra, and

Apprendi were not enough to dissuade the majority from what

I believe is its mistaken path, then the Supreme Court’s most

recent opinion on the issue in Cunningham could not have been

more clear. Under the California determinative sentencing law

(“DSL”) a defendant’s sentence was determined by the tier in

44

The finding by a preponderance of the evidence that

Grier had committed an aggravated assault is in sharp contrast

to Almendarez-Torres, where the underlying convictions

followed findings made beyond a reasonable doubt.

91

which s/he fell. A defendant would fall within the upper tier

only when the trial court determined that there were aggravating

circumstances. The Supreme Court held that the middle tier, in

which the defendant’s sentence would fall in the absence of such

aggravating circumstances, was to be regarded as “the relevant

statutory maximum.” Cunningham, 2007 WL 135687, at *11.

Once again, the Court reiterated the applicable principles:

“Because circumstances in aggravation are found by the judge

and not the jury, and need only be established by a

preponderance of the evidence, not beyond a reasonable doubt,

. . . the DSL violates Apprendi’s bright-line rule[.]” Id.

Apprendi, I emphasize, was not a statutory interpretation

but a constitutional rule. The Court in Cunningham relied on

Apprendi. The majority’s attempt to distinguish Cunningham in

its footnote: “The challenge before us is a Fifth Amendment

challenge to an advisory sentencing scheme rather than a Sixth

Amendment challenge to a mandatory sentencing scheme,” Maj.

op. at 18 n.6, is nothing short of bizarre. Does the majority

really believe that the Fourteenth Amendment’s incorporation of

the Sixth Amendment, which was the basis for the Supreme

Court’s constitutional opinion in Apprendi, inter alia, does not

apply equally to the Fifth Amendment?

The majority’s interpretation of Apprendi leads it to

establish the rule that “[o]nce a jury has found a defendant guilty

of each element of an offense beyond a reasonable doubt, he has

been constitutionally deprived of his liberty and may be

sentenced up to the maximum sentence authorized under the

United States Code without additional findings beyond a

reasonable doubt.” Maj. op. at 10.

92

The charge to which Grier pled guilty has a statutory

maximum imprisonment term of 120 months, 18 U.S.C. §

924(a)(2), and no mandatory minimum. In the Presentence

Report (PSR), the Probation Officer, after determining that Grier

“used or possessed the firearm in connection with another felony

offense (aggravated assault),” PSR, para. 14, and therefore was

subject to a four-level enhancement pursuant to then-applicable

U.S.S.G. § 2K2.1(b)(5), calculated that the appropriate

Guidelines range for Grier’s sentence (with a total offense level

of 27 and a category V criminal history) was 120-150 months.

The PSR also noted that without that four-level enhancement the

appropriate sentencing range would be 84 to 105 months in

prison.

At the sentencing hearing the District Court adopted the

PSR, expressly using the preponderance-of-the-evidence

standard in finding that Grier committed the “other felony

offense,” i.e. “aggravated assault.” The Court made a

downward departure under U.S.S.G. § 5K2.10 because the

victim was partially responsible for the assault that was the basis

for the enhancement, and sentenced Grier to 100 months in

prison, with three years of supervised release.

According to the majority’s analysis, because Grier was

subject to a statutory maximum of 120 months and the District

Court sentenced him to 100 months imprisonment, Grier’s

constitutional due process rights were not violated. However,

the majority overlooks the fact that the District Court could have

sentenced Grier at the low range of the advisory Guideline, i.e.

to 84 months imprisonment. It is thus possible, and perhaps

likely, that had the District Court recognized that the aggravated

assault had to be proven beyond a reasonable doubt, it would

93

have sentenced Grier to no more than 84 months imprisonment.

It is evident that the PSR calculation, adopted by the sentencing

judge, increased the sentence to which Grier was exposed.

In Apprendi the Court stated:

The differential in sentence between what

Apprendi would have received without the

finding of biased purpose and what he could

receive with it is not, it is true, as extreme as the

difference between a small fine and mandatory

life imprisonment. Mullaney, 421 U.S., at 700.

But it can hardly be said that the potential

doubling of one’s sentence – from 10 years to 20

– has no more than a nominal effect. Both in

terms of absolute years behind bars, and because

of the more severe stigma attached, the

differential here is unquestionably of

constitutional significance. When a judge’s

finding based on a mere preponderance of the

evidence authorizes an increase in the maximum

punishment, it is appropriately characterized as “a

tail which wags the dog of the substantive

offense.” McMillan, 477 U.S., at 88.

530 U.S. at 495.

In this case, the District Court’s adoption of the

preponderance-of-the-evidence standard, that the majority

approves, and which exposed Grier to a year-and-a-half higher

sentence than he may have otherwise received, had more than a

“nominal” effect.

94

Moreover, the majority gives little or no effect to the

Supreme Court’s decision in Blakely v. Washington, 542 U.S.

296 (2004), where the Court applied its earlier holding in

Apprendi to a state’s indeterminate sentencing regime and held

that any fact that increased the sentence must also be submitted

to a jury, even though this sentence would fall within the

absolute maximum allowed by the statute. 542 U.S. at 303-04.

Because Blakely held that “the ‘statutory maximum’ for

Apprendi purposes is the maximum sentence a judge may

impose solely on the basis of the facts reflected in the jury

verdict or admitted by the defendant,” 542 U.S. at 303

(emphasis in original), any enhancement based on additional

facts, even if the ultimate sentence is within the statutory range,

as in Grier’s case, violates both Apprendi and Blakely. Once

again the Cunningham opinion speaks definitively to this issue.

The Court reprised the facts in Blakely. Blakely had been

convicted of second-degree kidnapping with a firearm, a class

B felony under Washington law. Although Blakely was

sentenced to 90 months’ imprisonment, well within the overall

statutory maximum of ten years for a class B felony, the Court

held that the Washington State sentencing scheme violated the

Sixth Amendment because the trial court could exceed the

“standard range” of 49 to 53 months for “substantial and

compelling reasons justifying an exceptional sentence.”

Cunningham, 2007 WL 135687, at *8 (internal citation and

quotation omitted). As explained in Cunningham, “[t]he judge

could not have sentenced Blakely above the standard range

without finding the additional fact of deliberate cruelty.

Consequently, that fact was subject to the Sixth Amendment’s

jury-trial guarantee. [Blakely,] 542 U.S. at 304-314. It did not

matter, we explained, that Blakely’s sentence, though outside

95

the standard range, was within the 10-year maximum for Class

B felonies[.]” Id. at *8 (emphasis added). Thus the fact that the

majority deems dispositive in this case, that Grier’s sentence did

not exceed the statutory maximum, is effectively repudiated by

Cunningham.

Throughout its opinion the majority focuses on the

language in the Booker remedial opinion, not on the Booker

constitutional opinion. The Booker remedial opinion, authored

by Justice Breyer, is addressed solely to the manner in which the

requirements of the Booker constitutional opinion can be met.

As the majority recognizes, the Booker Court’s holding is

limited to an analysis of the defendant’s Sixth Amendment right

to a jury trial. Booker offered no discussion of the Fifth

Amendment, and to the extent that making the Guidelines

advisory obviated the constitutional concerns raised in that case,

it must be noted that there is a clear distinction to be drawn

between Fifth and Sixth Amendment guarantees; the fact that

rendering the Guidelines advisory remedied Sixth Amendment

violations has little bearing on Fifth Amendment considerations.

The issue before this court is whether, under the now-advisory

Guidelines, the enhancement based on a judicial finding of fact

(the commission of a separate felony) by the preponderance of

evidence violated Grier’s due process rights.

The majority opinion can be read to hold that as long as

the sentence imposed is reasonable and within the statutory

maximum, there is no constitutional issue. But nothing in the

Booker remedial opinion, which adopts reasonableness as the

standard for appellate review of the sentence imposed by a

district court, suggests that “reasonableness” can be substituted

for the constitutional requirement of a finding beyond a

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