reasoning that a finding is clearly erroneous, despite evidence supporting it, when the reviewing body “‘is left with the definite and firm conviction that a mistake has been committed’” (quoting Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Trust for S. Cal., 508 U.S. 602, 622 (1993))
How later courts described this case
- reasoning that a finding is clearly erroneous, despite evidence supporting it, when the reviewing body “‘is left with the definite and firm conviction that a mistake has been committed’” (quoting Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Trust for S. Cal., 508 U.S. 602, 622 (1993))
- holding that Apprendi does not limit a district court’s ability to engage in judicial fact-finding within the permissible sentencing range so long as that fact-finding would not trigger an increase in the defendant’s maximum statutory sentence
- explaining that “[u]nder 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.”
- holding that district court may find facts relevant to sentencing by preponderance of the evidence without violating right to jury trial, so long as findings do not elevate sentence beyond statutory maximum
Written by the judges who cited it.
The opinion
RENDELL, Circuit Judge,
concurring.
I agree with Judge Fisher’s excellent reasoning and result. However, I write separately because I believe that due process concerns regarding the standard of proof at sentencing are minimal, if not non-existent, when the sentence is below the statutory maximum, as it was here.
Grier argues that due process requires that other potentially criminal conduct relied on by the sentencing judge to enhance his sentence must be proven beyond a reasonable doubt. This is incorrect. The Supreme Court stated in McMillan v. Pennsylvania, 477 U.S. 79 , 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 confíne 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 *573 by statute for that crime without implicating due process.
Judge Sloviter quotes with specific emphasis Justice Thomas’s partial dissent in Booker and his statement that “any fact that increases the sentence beyond what could have been lawfully imposed on the basis of facts found by the jury or admitted by the defendant” must be proved beyond a reasonable doubt. United, States v. Booker, 543 U.S. 220 , 319 n. 6, 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.
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 spec-tre 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.
. 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).
. 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.