United States v. Sean Michael Grier

475 F.3d 556

UNITED STATES of America

v.

Sean Michael GRIER, Appellant.

No. 05-1698.

United States Court of Appeals, Third Circuit.

Argued En Banc September 13, 2006. *

Filed February 5, 2007.

Ronald A. Krauss (Argued), Office of Federal Public Defender, Harrisburg, PA, Attorney for Appellant, Sean Michael Grier.

Christian A. Fisanick, Office of United States Attorney, Scranton, PA, Theodore B. Smith, III (Argued), Eric Pfisterer, Kimberly A. Kelly, Office of United States Attorney, Harrisburg, PA, Attorneys for Appellee, United States of America.

Lawrence S. Lustberg, Michael A. Baldassare, Gibbons, Del Deo, Dolan, Griffinger & Vecchione, Newark, NJ, Attorneys for Amicus-Appellant, National Association of Federal Defenders and National Association of Criminal Defense Lawyers.

Before SCIRICA, Chief Judge, SLOVITER, McKEE, RENDELL, BARRY, AMBRO, FUENTES, SMITH, FISHER, CHAGARES and VAN ANTWERPEN, ** Circuit Judges.

OPINION OF THE COURT

FISHER, Circuit Judge.

1

The Supreme Court held in United States v. Booker, 543 U.S. 220 , 125 S.Ct. 738 , 160 L.Ed.2d 621 (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.

2

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.

3

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."

4

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.

5

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.

6

A police investigation ensued. Officers found the discarded gun, and a background check revealed that it had been 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.

7

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.

8

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 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.

9

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."

10

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:

11

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.

12

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 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.

13

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.

14

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.

15

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. § 1291 . See United States v. Cooper, 437 F.3d 324, 327 (3d Cir.2006).

II.

16

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.

17

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.

18

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 , 125 S.Ct. 738 , and we declined to address it in 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 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (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.

19

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 , 125 S.Ct. 738 (citing United States v. Gaudin, 515 U.S. 506, 511 , 115 S.Ct. 2310 , 132 L.Ed.2d 444 (1995)).

20

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 , 124 S.Ct. 2531 , 159 L.Ed.2d 403 (2004); Apprendi, 530 U.S. at 476-77 , 120 S.Ct. 2348 ; Harris v. United States, 536 U.S. 545, 556-68 , 122 S.Ct. 2406 , 153 L.Ed.2d 524 (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 those offenses upon conviction. See Blakely, 542 U.S. at 301-02, 306-07, 311-12 , 124 S.Ct. 2531 ; Apprendi, 530 U.S. at 476-77, 489-94 , 120 S.Ct. 2348 ; Harris, 536 U.S. at 556-68 , 122 S.Ct. 2406 . 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."

21

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 , 120 S.Ct. 2348 . 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, 120 S.Ct. 2348 (citing Jones v. United States, 526 U.S. 227, 244-48 , 119 S.Ct. 1215 , 143 L.Ed.2d 311 (1999)); see also id. at 500-01, 120 S.Ct. 2348 (Thomas, J., concurring).

22

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 , 122 S.Ct. 2406 (quoting Apprendi, 530 U.S. at 498 , 120 S.Ct. 2348 (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 statutory maximum penalty, a court may impose any sentence on the individual up to that maximum. Id.

23

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 , 122 S.Ct. 2406 ; Apprendi, 530 U.S. at 481-82 , 120 S.Ct. 2348 (citing Williams v. New York, 337 U.S. 241, 242-47 , 69 S.Ct. 1079 , 93 L.Ed. 1337 (1949)); McMillan v. Pennsylvania, 477 U.S. 79, 89-90 , 106 S.Ct. 2411 , 91 L.Ed.2d 67 (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 , 124 S.Ct. 2531 ; Harris, 536 U.S. at 556-68 , 122 S.Ct. 2406 . 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, 106 S.Ct. 2411 (quoting Meachum v. Fano, 427 U.S. 215, 224 , 96 S.Ct. 2532 , 49 L.Ed.2d 451 (1976)).

2.

24

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 , 125 S.Ct. 738 (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 Manual §§ 2D 1.1(c)(4), 4A 1.1). 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.

25

The Supreme Court reversed. Of central importance to its conclusion was the mandatory nature of the Guidelines. Id. at 233-35, 125 S.Ct. 738 . 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.

26

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 , 120 S.Ct. 2348 ).

27

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 .

28

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.

29

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, 120 S.Ct. 2348 . 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.

30

To achieve this result, the Court "sever[ed] and excise[d]" two statutory provisions: "the provision that requires 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 , 125 S.Ct. 738 . The 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.

31

The Court noted that the "remainder of the Act `function[s] independently.'" Id. (quoting Ala. Airlines, Inc. v. Brock, 480 U.S. 678, 684 , 107 S.Ct. 1476 , 94 L.Ed.2d 661 (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, 125 S.Ct. 738 . Of course, for Sixth Amendment purposes, this change makes all of the difference. See id.

3.

32

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 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 , 125 S.Ct. 738 , 160 L.Ed.2d 621 (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.

33

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 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 , 120 S.Ct. 2348 . 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 , 125 S.Ct. 738 . They merely inform the judge's broad discretion. Id.

34

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 , 120 S.Ct. 2348 . 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 , 122 S.Ct. 2406 ; Williams, 337 U.S. at 242-47 , 69 S.Ct. 1079 .

35

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 , 122 S.Ct. 2406 ("Judicial factfinding in the course of selecting a sentence within the authorized range does not implicate the . . . reasonable-doubt component[] of the Fifth . . . Amendment[].").

36

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.

37

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 , 119 S.Ct. 1215 , 143 L.Ed.2d 311 (1999), and Apprendi . This reliance is misplaced.

38

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 , 119 S.Ct. 1215 . 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 element defining an aggravated form of the crime." Id. at 236 , 119 S.Ct. 1215 . 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 , 119 S.Ct. 1215 .

39

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 , 119 S.Ct. 1215 . 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.

40

The only discussion of constitutional rights in Jones is in the subsidiary context of the interpretative canon of avoidance. Id. at 239-40 , 119 S.Ct. 1215 . 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 , 119 S.Ct. 1215 . 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 , 119 S.Ct. 1215 .

41

There is no question of statutory interpretation here. 7 The 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.

42

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 , 120 S.Ct. 2348 . This standard is not based upon the legislature's definition of a fact as an "element" or "enhancement," id. at 498-90 , 120 S.Ct. 2348 , or upon a formalistic "multifactor parsing of statutes," id. at 501 , 120 S.Ct. 2348 (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 , 119 S.Ct. 1215 . 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, 477 U.S. at 92 n. 8, 106 S.Ct. 2411 . The sole question under Apprendi is whether the fact at issue increases the maximum punishment to which the defendant is exposed. 530 U.S. at 490, 494 , 120 S.Ct. 2348 ("[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?").

43

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 , 120 S.Ct. 2348 .

5.

44

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 , 125 S.Ct. 738 ("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

45

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.

46

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.

47

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 , 125 S.Ct. 738 . It held that appellate courts should thereafter review the ultimate sentence for "reasonableness." Id. at 260-63 , 125 S.Ct. 738 . Unfortunately, it did not specify whether the clearly erroneous standard should continue to apply to factual findings bearing on the advisory Guidelines range.

1.

48

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 , 125 S.Ct. 738 . Third, courts could continue to review findings for "clear error." See Lennon, 372 F.3d at 538 .

49

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 , 125 S.Ct. 738 ; 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. Haack, 403 F.3d 997, 1003 (8th Cir.), cert. denied, ___ U.S. ___, 126 S.Ct. 276 , 163 L.Ed.2d 246 (2005).

50

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 , 125 S.Ct. 738 . 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).

51

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 , 125 S.Ct. 738 . 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.

52

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, 221-22 (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, ___ U.S. ___, 126 S.Ct. 1477 , 164 L.Ed.2d 257 (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, ___ U.S. ___, 126 S.Ct. 1142 , 163 L.Ed.2d 1003 (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).

53

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 , 113 S.Ct. 2264 , 124 L.Ed.2d 539 (1993) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 , 68 S.Ct. 525 , 92 L.Ed. 746 (1948)). A sentence imposed as a result of a clearly erroneous factual conclusion will generally be deemed "unreasonable" and, 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 , 125 S.Ct. 738 .

2.

54

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, 574 Pa. 233 , 830 A.2d 537, 541-42 (2003).

55

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 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.

56

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.

57

"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 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.

58

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 U.S. at 261 , 125 S.Ct. 738 . 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 .

59

The record in this case is simply too sparse to allow us to conclude that the District Court honored its statutory duty. 11 The 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.

60

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 .

61

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.

62

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 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.

63

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.

64

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.

65

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.

Notes:

*

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 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

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]

. . .

(4) attempts to cause or intentionally or knowingly causes bodily injury to another with a deadly weapon. . . .

18

Pa. Cons.Stat. § 2702(a)

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 intentionally, knowingly 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 which case it is a misdemeanor of the third degree. . . .

18

Pa. Cons.Stat. § 2701

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 sentence departs from 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 considered in imposing 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.

18 U.S.C. § 3742 (e).

6

We note here that the same question was answered in Cunningham v. California, ___ U.S. ___, 127 S.Ct. 856 , ___ L.Ed.2d ___ (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.

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 J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Const. Trades Council, 485 U.S. 568, 575 , 108 S.Ct. 1392 , 99 L.Ed.2d 645 (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. at 575 , 108 S.Ct. 1392 . The doctrine of constitutional avoidance is, therefore, inappropriate in this case.

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, 88 , 106 S.Ct. 2411 , 91 L.Ed.2d 67 (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 .

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 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.").

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 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 government does not argue in this case that Grier failed to preserve his challenge to the sentence imposed by the District Court.

66

RENDELL, Circuit Judge, concurring.

67

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.

68

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 , 106 S.Ct. 2411 , 91 L.Ed.2d 67 (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, 106 S.Ct. 2411 (quoting Meachum v. Fano, 427 U.S. 215, 224 , 96 S.Ct. 2532 , 49 L.Ed.2d 451 (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.

69

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, 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005) (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.

70

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. 568, 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 connection with sentencing for the offense of conviction. 13 Due process accordingly is not implicated.

Notes:

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).

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.

71

AMBRO, Circuit Judge, concurring in judgment.

72

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

I.

73

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 , 120 S.Ct. 2348 (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 , 125 S.Ct. 738 (Stevens, J., dissenting in part). In response, I believe that a less manipulable rule should be set—that constitutional protections apply not only to those facts that authorize the "statutory maximum" (as phrased by Apprendi ), see 530 U.S. at 490 , 120 S.Ct. 2348 , 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 Blakely, Booker, and, most recently, Cunningham 16 —be fully respected.

74

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—through use 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.

75

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 , 106 S.Ct. 2411 , 91 L.Ed.2d 67 (1986) (allowing "sentencing factors" that enhance punishment to be proven by a preponderance of the evidence), and Harris v. United States, 536 U.S. 545 , 122 S.Ct. 2406 , 153 L.Ed.2d 524 (2002) (reaffirming McMillan after Apprendi and again holding that judicial fact-finding by a preponderance of the evidence at sentencing passes constitutional muster).

76

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 , 122 S.Ct. 2406 (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 , 118 S.Ct. 275 , 139 L.Ed.2d 199 (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.

II.

77

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.

78

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 , 120 S.Ct. 2348 . 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 565; Apprendi speaks only of the reasonable-doubt standard for jury verdicts as a "companion" to the jury guarantee, see 530 U.S. at 478 , 120 S.Ct. 2348 . 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 maximum he may impose without any additional findings." 542 U.S. at 303-04 , 124 S.Ct. 2531 (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 , 125 S.Ct. 738 ("[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, 125 S.Ct. 738 .

79

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 , 125 S.Ct. 738 . 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.

80

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 consistent with due process as protected by the Fifth Amendment. 20

A.

81

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 , 120 S.Ct. 2348 , 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 565. Though every fact that must be found by a jury must also be found beyond a reasonable doubt, this does not mean that those 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 , 90 S.Ct. 1068 , 25 L.Ed.2d 368 (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).

82

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 566 ("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.

83

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 , 106 S.Ct. 2411 . 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 , 106 S.Ct. 2411 . 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 warrant constitutionalizing burdens of proof at sentencing." Id. at 91-92 , 106 S.Ct. 2411 . 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 , 106 S.Ct. 2411 (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.

84

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, 120 S.Ct. 2348 . 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 , 122 S.Ct. 2406 . 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.

85

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 606 (McKee, J., dissenting) (citing United States v. Leahy, 438 F.3d 328 , 345 & n. 16 (3d Cir.2006) (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

86

Therefore, Justice Breyer's opinion in Booker , which 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

87

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, 127 S.Ct. at 868, 869, 878, 879 (referring to Apprendi's "bright-line rule"); Blakely, 542 U.S. at 308 , 124 S.Ct. 2531 (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 562 ("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 593 (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 568 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)).

88

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 ... [evidentiary] presumptions" that "relieve the prosecution of its burden of proving guilt." McMillan, 477 U.S. at 87 , 106 S.Ct. 2411 . 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 , 106 S.Ct. 2411 . 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, 106 S.Ct. 2411 . 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 , 106 S.Ct. 2411 (quoting Patterson v. New York, 432 U.S. 197, 226 , 97 S.Ct. 2319 , 53 L.Ed.2d 281 (1977) (Powell, J., dissenting)).

89

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 , 106 S.Ct. 2411 ("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 , 124 S.Ct. 2531 (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, 120 S.Ct. 2348 (discussed above); Harris, 536 U.S. at 550, 568 , 122 S.Ct. 2406 (discussed above).

90

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 the appropriate standard of proof for Guidelines facts, 26 as did courts across the country. 27

91

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 561, but then goes on to "question[]" an important part of our due process sentencing jurisprudence from those same twenty years, Maj. Op., supra, at 568 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 568 n. 8, and I do not. 28

92

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 benefited 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.

93

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 566. And though I ultimately cannot join my dissenting colleagues, the principle behind their position reflects a concern that is anything but novel.

94

Contrary to the majority's assertion that the separate-offense concept "appears nowhere in Supreme Court jurisprudence," Maj. Op., supra, at 567, that Court in fact 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, 124 S.Ct. 2531 ("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 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 , 106 S.Ct. 2411 (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.

95

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 , 117 S.Ct. 633 , 136 L.Ed.2d 554 (1997), which also remains good law despite unrelenting challenge. I will address each of these reasons in turn.

96

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 factor's traditional treatment in criminal law. See McMillan, 477 U.S. at 87-90 , 106 S.Ct. 2411 .

97

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

98

In United States v. Lombard, 72 F.3d 170 (1st Cir.1995), for example, the First Circuit Court of Appeals produced a 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.

99

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,

100

Given the magnitude of the sentence "enhancement," the seriousness of the "enhancing" conduct in relation to the offense of 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.

101

Id. at 180 (citations omitted).

102

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 "the tail wags the dog," in that the effect of the enhancement is too severe). 31

103

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 , 117 S.Ct. 633 . 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 , 117 S.Ct. 633 . Continuing the discussion, the Court said:

104

[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 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.

105

Id. at 156-57 , 117 S.Ct. 633 (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.

106

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 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, 125 S.Ct. 738 , 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

107

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."

108

* * * * * *

109

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 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.

110

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.

111

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 , 124 S.Ct. 2531 (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?" Moreover—and more importantly — McMillan's rule is still binding on the lower courts.

112

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 , 125 S.Ct. 738 (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, at 870 (" 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.

113

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 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 Guidelines, lest we recreate an unconstitutional sentencing scheme. 37

114

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 (4th Cir.2006), cert. granted, ___ U.S. ___, 127 S.Ct. 551 , 166 L.Ed.2d 406 (2006) (addressing a presumption of reasonableness for within-Guidelines sentences); United States v. Claiborne, 439 F.3d 479 (8th Cir.2006), cert. granted, ___ U.S. ___, 127 S.Ct. 551 , 166 L.Ed.2d 406 (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 , 120 S.Ct. 2348 .

Notes:

14

See United States v. Booker, 543 U.S. 220, 244 , 125 S.Ct. 738 , 160 L.Ed.2d 621 (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 , 124 S.Ct. 2531 , 159 L.Ed.2d 403 (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 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000) (Scalia, J., concurring) ("The founders of the American Republic were not prepared to leave [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 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 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. ...").

15

See United States v. Reese, 92 U.S. 214, 232 , 23 L.Ed. 563 (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 SEATTLE U.L.REV. 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 SIR MATTHEW HALE, HISTORIA PLACITORUM CORONAE (1736))); Hon. Boyce F. Martin, Jr., The Cornerstone Has No Foundation: Relevant Conduct in Sentencing and the Requirements of Due Process, 3 SETON HALL CONST. 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.").

16

Cunningham v. California, 549 U.S. ___ , 127 S.Ct. 856 , ___ L.Ed.2d ___ (2007).

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 , 122 S.Ct. 2406 (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

19

See also Apprendi, 530 U.S. at 490 , 120 S.Ct. 2348 ("`[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 , 119 S.Ct. 1215 , 143 L.Ed.2d 311 (1999) (Stevens, J., and Scalia, J., in separate concurrences)).

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.federal defenders.org/blog_doubtredux.pdf, I agree with the majority that the doctrine does not apply here, see Maj. Op., supra, at 567 n. 7. Though Judge Sloviter argues that the comment to § 6A1.3 in the Guidelines is inapplicable to this case, Dis. Op., infra, at 591-92 (Sloviter, J., dissenting), I consider that policy statement to be directly on point, thus precluding invocation of the doctrine.

21

See John Gleeson, The Road to Booker and Beyond: Constitutional Limits on Sentence Enhancements, 21 TOURO L.REV. 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 COLUM. L. REV. 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 , 122 S.Ct. 2428 , 153 L.Ed.2d 556 (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. Dis. Op., infra, Part I.A (McKee, J., dissenting). Though he disavows any attempt to "undermine Booker , " Dis. Op., infra, at 609 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, 472 F.3d 910, 922 (D.C.Cir.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 DENVER U.L.REV. 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 , 125 S.Ct. 738 (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.

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 , 125 S.Ct. 738 ; see also Apprendi, 530 U.S. at 481 , 120 S.Ct. 2348 . 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 Apprendi can apply under the statutory maximum. Dis. Op., infra, at 598-99 (Sloviter, J., dissenting) (quoting Blakely, 542 U.S. at 303 , 124 S.Ct. 2531 (emphasis in Blakely )); see also Dis. Op., infra, at 605 (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, 127 S.Ct. at 866 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 597, 600 (Sloviter, J., dissenting); Dis. Op., infra, Part IV (McKee, J., dissenting).

Judge Sloviter argues at length that Jones v. United States, 526 U.S. 227 , 119 S.Ct. 1215 , 143 L.Ed.2d 311 (1999), compels the conclusion she reaches. See Dis. Op., infra, at 593-96 (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 , 119 S.Ct. 1215 , and (2) that "[t]he Jones factual scenario does not differ markedly from that presented in this case," Dis. Op., infra, at 594 (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 , 119 S.Ct. 1215 ; see also Cunningham, at 863. 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 , 125 S.Ct. 716 , 160 L.Ed.2d 734 (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, 125 S.Ct. 738 (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, at 863 ("[T]he Jones opinion presaged our decision, some 15 months later, in Apprendi v. New Jersey. ." (citation omitted)).

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 .

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 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, 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 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 568 n. 8.

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 , 124 S.Ct. 2531 . 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 Amendment (though I concede it does not produce an "absurd" result in this instance).

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 593 (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.

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 , 120 S.Ct. 2348 ("purposeful intimidation"); see also Cunningham, 127 S.Ct. at 860 ("vulnerable victim" and "serious danger to community"); Booker, 543 U.S. at 227 , 125 S.Ct. 738 (drug quantity); Blakely, 542 U.S. at 300 , 124 S.Ct. 2531 ("deliberate cruelty"); Ring, 536 U.S. at 592-93 , 122 S.Ct. 2428 ("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 case. See supra Part II.A & n. 11.

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).

33

See United States v. Mercado, 474 F.3d 654 (9th Cir.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, 125 S.Ct. 738 . 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 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 604 (Sloviter, J., dissenting).

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.").

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 FED. SENT. 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).

38

See Booker, 543 U.S. at 312 , 125 S.Ct. 738 (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....").

115

SLOVITER, Circuit Judge, dissenting, with whom Judge McKee joins.

116

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 , 125 S.Ct. 738 , 160 L.Ed.2d 621 (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 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, ___ U.S. ___, 127 S.Ct. 856 , ___ L.Ed.2d ___ (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.

117

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.

118

I cannot accept the majority's abnegation of the Fifth Amendment's imperative that a criminal defendant is entitled to 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.

119

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.'" Apprendi v. New Jersey, 530 U.S. 466, 476 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (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 , 90 S.Ct. 1068 , 25 L.Ed.2d 368 (1970).

120

The rationale for requiring that rigorous standard of proof was discussed by Justice John Marshall Harlan II with his 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 , 90 S.Ct. 1068 . 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 , 90 S.Ct. 1068 . 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.

121

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 reasonable doubt.'" Id. at 372 , 90 S.Ct. 1068 (quoting Speiser v. Randall, 357 U.S. 513, 525-26 , 78 S.Ct. 1332 , 2 L.Ed.2d 1460 (1958)).

122

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 , 120 S.Ct. 2348 (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 , 125 S.Ct. 738 .

123

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).

124

Reiterating established principles of constitutional law, the Court in Booker , quoting Blakely v. Washington, 542 U.S. 296, 301 , 124 S.Ct. 2531 , 159 L.Ed.2d 403 (2004), stated that it is "the defendant's right to have the jury find the existence of `any particular fact' that the law makes essential to his punishment," Booker , at 543 U.S. at 232, 125 S.Ct. 738 , 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 , 125 S.Ct. 738 , quoting Ring v. Arizona, 536 U.S. 584, 602 , 122 S.Ct. 2428 , 153 L.Ed.2d 556 (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, 127 S.Ct. at 863 (emphasis added).

125

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 568. 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 , 125 S.Ct. 738 (`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 568. The majority errs on all three points. If these purported supporting authorities do not support the majority's 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.

126

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.

127

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 , 125 S.Ct. 738 . In so holding, the Court referred to the decision in Mistretta, 488 U.S. 361, 377 , 109 S.Ct. 647 , 102 L.Ed.2d 714 (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 , 125 S.Ct. 738 . 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 , 125 S.Ct. 738 (quoting Mistretta ).

128

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.

129

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,

130

The commentary to § 6A1.3 states that the Commission believes that use of a preponderance 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.

131

543 U.S. at 319 n. 6, 125 S.Ct. 738 (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.").

132

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 ... ['] in resolving factual disputes, this provision is overdue for reexamination in the wake of the Supreme Court's decisions in Apprendi, Blakely, and Booker.").

133

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.

134

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 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.

135

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 561. 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.

136

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.

137

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 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 , 90 S.Ct. 1068 .

138

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 , 119 S.Ct. 1215 , 143 L.Ed.2d 311 (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 , 119 S.Ct. 1215 . 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.

139

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, 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.

140

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, 119 S.Ct. 1215 . 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 , 119 S.Ct. 1215 .

141

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 , 119 S.Ct. 1215 (quoting U.S. ex rel. Attorney Gen. v. Del. & Hudson Co., 213 U.S. 366, 408 , 29 S.Ct. 527 , 53 L.Ed. 836 (1909)), 42 that would arise 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 , 119 S.Ct. 1215 .

142

After citing In re Winship, referred to above, the Jones Court reviewed the holdings in Mullaney v. Wilbur, 421 U.S. 684 , 95 S.Ct. 1881 , 44 L.Ed.2d 508 (1975), Patterson v. New York, 432 U.S. 197 , 97 S.Ct. 2319 , 53 L.Ed.2d 281 (1977), and McMillan v. Pennsylvania, 477 U.S. 79 , 106 S.Ct. 2411 , 91 L.Ed.2d 67 (1986), focusing on the constitutional issues they presented. Jones, 526 U.S. at 240-42 , 119 S.Ct. 1215 . 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, 119 S.Ct. 1215 (emphasis added).

143

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 566, 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 , 119 S.Ct. 1215 , that would arise under the Government's interpretation 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 566, 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 , 125 S.Ct. 738 . 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 , 125 S.Ct. 738 (quoting Jones, 526 U.S. at 244 , 119 S.Ct. 1215 ). 43

144

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 567. It states:

145

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 , 120 S.Ct. 2348 .

146

Maj. op. at 567.

147

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 , 120 S.Ct. 2348 , from the determinations of what are usually characterized as elements of the offense, to which greater due process protections apply. As the Court stated:

148

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.

149

Id. at 484 , 120 S.Ct. 2348 .

150

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 Almendarez-Torres v. United States, 523 U.S. 224, 251 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998) (Scalia, J., dissenting)). The Court then explained which facts are 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 , 119 S.Ct. 1215 (Stevens, J., concurring)).

151

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 , 120 S.Ct. 2348 . 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, 120 S.Ct. 2348 . 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 , 120 S.Ct. 2348 . The finding doubled the maximum range within which Apprendi could be sentenced.

152

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 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 , 120 S.Ct. 2348 . The Court quoted from its earlier opinion in United States v. Gaudin, 515 U.S. 506 , 115 S.Ct. 2310 , 132 L.Ed.2d 444 (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 , 120 S.Ct. 2348 (quoting Gaudin, 515 U.S. at 510 , 115 S.Ct. 2310 ). 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 , 120 S.Ct. 2348 .

153

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 , 120 S.Ct. 2348 . The Court rejected New Jersey's argument that the required "motive" finding was simply a "traditional" sentencing factor. Id. at 493-94 , 120 S.Ct. 2348 . 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 , 120 S.Ct. 2348 . 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 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.

154

Id. at 496, 120 S.Ct. 2348 (emphasis added). 44

155

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 , 120 S.Ct. 2348 . The advisory Guidelines do not have this effect." Maj. op. at 565. This, I respectfully state, is a non sequitur. If the decisions in Shepard v. United States, 544 U.S. 13 , 125 S.Ct. 1254 , 161 L.Ed.2d 205 (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 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, at 868. 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.

156

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 565 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?

157

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 561.

158

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.

159

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.

160

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 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:

161

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 , 95 S.Ct. 1881 . 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 , 106 S.Ct. 2411 .

162

530 U.S. at 495 , 120 S.Ct. 2348 .

163

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.

164

Moreover, the majority gives little or no effect to the Supreme Court's decision in Blakely v. Washington, 542 U.S. 296 , 124 S.Ct. 2531 , 159 L.Ed.2d 403 (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 , 124 S.Ct. 2531 . 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 , 124 S.Ct. 2531 (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, at 864 (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 , 124 S.Ct. 2531 . It did not matter, we explained, that Blakely's sentence, though outside the standard range, was within the 10-year maximum for Class B felonies[.] " Id. at 864 (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.

165

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.

166

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 reasonable doubt. In any event, none of the cases cited by the majority is binding on this court. 45 On the other hand, we are bound by the Supreme Court's decision in Cunningham where the Court made short shrift of the California Supreme Court's attempt "to rescue the DSL's judicial factfinding authority by typing it simply a reasonableness constraint, equivalent to the constraint operative in the federal system post- Booker. " Cunningham, at 870. The Court stated, "Reasonableness, however, is not, as [the California Supreme Court] would have it, the touchstone of Sixth Amendment analysis. The reasonableness requirement of Booker anticipated for the federal system operates within the Sixth Amendment constraints delineated in our precedent, not as a substitute for those constraints." Id.

167

Finally, the majority derides the suggestion that because the aggravated assault constitutes a separate offense, it is an element of a crime and therefore requires that the court make a finding of the commission of that offense beyond a reasonable doubt. See Maj. op. at 567-68. Once again the majority ignores the holding in Apprendi where the Supreme Court's decision was based on the fact that the enhancement to Apprendi's crime for possession of a firearm for an unlawful purpose was based on "a separate statute," the hate crime law. Apprendi, 530 U.S. at 468 , 120 S.Ct. 2348 . The majority's statement that "[f]acts relevant to application of the Guidelines — whether or not they constitute a `separate offense'," do not constitute "`elements' of a `crime'," and do not implicate the right to "proof beyond a reasonable doubt," Maj. op. at 568, simply wipes away the entire holding of Apprendi .

168

In summary, not one of the reasons given by the majority for its holding withstands analysis. With no precedent and no persuasive rationale for its discard of the beyond-a-reasonable-doubt standard, the majority's decision represents a regrettable erosion of a criminal defendant's constitutional right to due process, an erosion that I can only hope will be of short duration. 46

III.

169

Grier's second argument on appeal is that the record does not support a finding that he committed an aggravated assault, regardless of which standard of proof is used. 47 Although I agree with the majority that we must review particular factual determinations made by the District Court in the context of sentencing for clear error, I dissent from the majority's determination to remand this case for resentencing because the majority persists in its approval of the enhancement. Instead, I would remand to require the District Court to resentence without any enhancement based on the District Court's determination that Grier committed an aggravated assault.

170

Even if the majority were convincing that the appropriate standard of proof is preponderance of the evidence, the District Court clearly erred in finding that Grier committed an aggravated assault which was the basis for the sentencing enhancement. United States v. Gibbs, 190 F.3d 188, 197 (3d Cir.1999). In Shepard v. United States, 544 U.S. 13 , 125 S.Ct. 1254 , 161 L.Ed.2d 205 (2005), the Supreme Court spoke emphatically on the type and quantum of evidence required before a prior crime may be used as a predicate offense. Shepard (just as Grier in this case) had pled guilty to being a felon in possession of a firearm, i.e. the offense of conviction. The Government sought to enhance his sentence under the Armed Career Criminal Act, 18 U.S.C. § 924 (e) ("ACCA"), applicable to, inter alia, persons who had three prior convictions for violent felonies. Some fifteen years earlier, in Taylor v. United States, 495 U.S. 575 , 110 S.Ct. 2143 , 109 L.Ed.2d 607 (1990), the Court had decided that the only burglary that was a violent felony under the ACCA was generic burglary. Shepard, unlike Taylor, had not been tried for burglary but had pled guilty. There was no written plea agreement or transcript of plea colloquy, and he had not assented to any explicit factual finding by the trial judge. Because the offenses charged against Shepard were broader than generic burglary, the Court of Appeals held that the police reports may count as "sufficiently reliable evidence" to determine the nature of the prior crime. Shepard, 544 U.S. at 18 , 125 S.Ct. 1254 (internal citation and quotation omitted). The Supreme Court reversed.

171

In considering what would constitute an adequate judicial record of the prior crime, the Court referred to Taylor where the Court held that the qualifying "burglary" could be proven only by either a statutory definition substantially corresponding to generic burglary or by showing that the charging documents and jury instructions required the jury to find all the elements of generic burglary. Taylor, 495 U.S. at 602 , 110 S.Ct. 2143 . The Shepard Court added that in cases without a jury the prior crime could be evidenced by a bench-trial judge's formal rulings of law and findings of fact and in cases disposed of by plea agreements, by a "statement of factual basis for the charge, ... shown by a transcript of plea colloquy or by written plea agreement presented to the court, or by a record of comparable findings of fact adopted by the defendant upon entering the plea." Shepard, 544 U.S. at 20 , 125 S.Ct. 1254 . The Court rejected the Government's argument that it should expand the evidence by considering a police report submitted to a local court as grounds for issuing a complaint. That, according to Shepard , would not satisfy the necessary certainty of the record. The opinion stresses throughout the need for certainty as to the basis for the predicate conviction.

172

The Court stated that because there was no plea agreement or recorded colloquy in which Shepard admitted the fact at issue,

173

the sentencing judge considering the ACCA enhancement would (on the Government's view) make a disputed finding of fact about what the defendant and state judge must have understood as the factual basis of the prior plea, and the dispute raises the concern underlying Jones and Apprendi : the Sixth and Fourteenth Amendments guarantee a jury standing between a defendant and the power of the state, and they guarantee a jury's finding of any disputed fact essential to increase the ceiling of a potential sentence.

174

Id. at 25, 125 S.Ct. 1254 .

175

If the record in Shepard , where the defendant had pled guilty to the offense which the

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