observing that "the Supreme Court has recognized that due process protects a defendant's interest in fair sentencing, hut has emphasized in the same cases that the interest is not defined as a liberty interest in a sentence below the statutory maximum,” and leaving for another day the issue of whether a standard of proof higher than the general rule of preponderance of evidence would be necessary where the tail wags the dog of the substantive offense
How later courts described this case
- observing that "the Supreme Court has recognized that due process protects a defendant's interest in fair sentencing, hut has emphasized in the same cases that the interest is not defined as a liberty interest in a sentence below the statutory maximum,” and leaving for another day the issue of whether a standard of proof higher than the general rule of preponderance of evidence would be necessary where the tail wags the dog of the substantive offense
- asserting that the reasonable doubt standard is required for "an enhancement based on sentencing findings that appellant engaged in two additional sales of cocaine which were not charged in the indictment[, because t]hese additional sales constitute elements of a separate crime, not traditional sentencing factors"
- requiring clear and convincing evidence before the application of an enhancement that would have “an extremely disproportionate effect” on a sentence relative to the offense of conviction but refraining from delineating the boundaries of extremely disproportionate effects
- positing that the Sentencing Guidelines gave the defendant "a constitutionally-protected interest in a sentence less than the statutory maximum. This liberty interest, created by the mandatory language of the Sentencing Guidelines, is protected by the due process clause."
Written by the judges who cited it.
The opinion
PREGERSON, Circuit Judge,
with whom HUG, Circuit Judge, joins, dissenting:
I concur with Circuit Judge Norris but write separately to state my belief that the reasonable doubt standard ought to obtain.
Restrepo was convicted of violating a penal statute that provided for a maximum prison sentence . of twenty years. The government contended at oral argument that Restrepo had no constitutionally-protected liberty interest in any sentence that was less than that statutory maximum.
The government’s position may have been correct under discretionary sentencing schemes that operate in many states and that operated in federal courts before the Sentencing Reform Act of 1984 and the promulgation of the Sentencing Guidelines. Under such systems of discretionary sentencing, like the one reviewed in McMillan v. Pennsylvania, 477 U.S. 79 , 106 S.Ct. 2411 , 91 L.Ed.2d 67 (1986), the defendant’s conviction, by itself, furnishes sufficient grounds for the judge to impose the maximum sentence permitted by statute, regardless of what facts may be established at the sentencing hearing. See id. at 92 n. 8, 106 S.Ct. at 2419 , n. 8 (citing Meachum v. Fano, 427 U.S. 215, 224 , 96 S.Ct. 2532, 2538 , 49 L.Ed.2d 451 (1976) (prison officials may transfer prisoner for any reason or for no reason at all)).
The Supreme Court has now rejected the government’s position that a defendant has no liberty interest in a sentence less than the statutory maximum. Now that the Sentencing Guidelines are law, the defendant does have a constitutionally-protected liberty interest in a sentence less than the statutory maximum. This liberty interest, created by the mandatory language of the Sentencing Guidelines, is protected by the due process clause. See Burns v. United States, — U.S. -, —, 111 S.Ct. 2182, 2186-88 , 115 L.Ed.2d 123 (1991); id. at -, 111 S.Ct. at 2190-92, 2196-97 (Souter, J., dissenting).
In Restrepo’s case, the Guidelines created a constitutionally-protected expectation that Restrepo would receive a sentence of 27-33 months for the 37.5 grams of cocaine involved in the two counts for which he was convicted. The government sought to establish that Restrepo was actually responsible for an additional sixty-five grams of cocaine. If the government was successful, the judge was required to sentence Restrepo to an additional fourteen to eighteen months in prison.
Fourteen to eighteen months of Restre-po’s freedom thus turned on whether the government could establish Restrepo’s responsibility for the additional cocaine. When the government’s power to deprive an individual of liberty or property turns on the correctness of a factual conclusion, due process protects the individual’s stake in assuring that the determination is reliable and accurate. When the stakes are high, as they are when individuals stand to lose their freedom, we require a high degree of confidence that the disputed issues are determined reliably:
*664 The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfind-ing, is 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.” In re Win-skip, 397 U.S. 358, 370 [ 90 S.Ct. 1068, 1075 , 25 L.Ed.2d 368 ] (1970) (Harlan, J., concurring). The standard serves to allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate decision.
Addington v. Texas, 441 U.S. 418, 423 , 99 S.Ct. 1804, 1808 , 60 L.Ed.2d 323 (1979). “In the administration of criminal justice, our society imposes almost the entire risk of error upon itself” by requiring proof beyond a reasonable doubt. Id. at 424-25 , 99 S.Ct. at 1808 . The standard of proof “reflects the value society places on individual liberty.” Id. at 425 , 99 S.Ct. at 1809 .
When someone’s freedom depends on the factual conclusion whether or not he or she is responsible for a criminal offense, we have historically required proof beyond a reasonable doubt. In this case, Restrepo’s freedom turned on the factual conclusion that he was responsible for an additional sixty-five grams of cocaine. Even though that conclusion was made after conviction, at the sentencing hearing, it still resulted in a mandatory additional loss of fourteen to eighteen months. To underscore the value we place on individual liberty, and to ensure the reliability of factual conclusions that result in a loss of that liberty, I believe the reasonable doubt standard should apply-
I cannot believe, as the majority does, that the Constitution permits the defendant to be deprived of his freedom and “ ‘imprisoned for years on the strength of the same evidénce as would suffice in a civil case.' ” In re Winship, 397 U.S. 358, 363 , 90 S.Ct. 1068, 1072 , 25 L.Ed.2d 368 (1970). I dissent.