                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-5-2007

USA v. Grier
Precedential or Non-Precedential: Precedential

Docket No. 05-1698




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                                            PRECEDENTIAL

           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT


                         No. 05-1698


             UNITED STATES OF AMERICA

                               v.

                 SEAN MICHAEL GRIER,

                               Appellant


       On Appeal from the United States District Court
           for the Middle District of Pennsylvania
                   (D.C. No. 03-cr-00284)
        District Judge: Honorable Sylvia H. Rambo


            Argued En Banc September 13, 2006 *


       *
        This case was originally argued on October 25, 2005,
before Judges Sloviter, Fisher, and Rosenn. The coram was
reconstituted to include Chief Judge Scirica after the death of
Judge Rosenn. On June 6, 2006, an opinion by a majority of the
original panel was filed, affirming the District Court's legal
conclusions, but remanding for resentencing, directing the
     Before: SCIRICA, Chief Judge, SLOVITER,
       McKEE, RENDELL, BARRY, AMBRO,
            FUENTES, SMITH, FISHER,
  CHAGARES and VAN ANTWERPEN,** Circuit Judges.

                   (Filed February 5, 2007)

Ronald A. Krauss (Argued)
Office of Federal Public Defender
100 Chestnut Street, Suite 306
Harrisburg, PA 17101
       Attorney for Appellant,
       Sean Michael Grier

Christian A. Fisanick
Office of United States Attorney
235 North Washington Avenue, Suite 311
P.O. Box 309
Scranton, PA 18501




District Court to state more fully its reasons for imposing the
particular sentence. Judge Sloviter filed a dissenting opinion on
the same day. Appellant petitioned for rehearing en banc. The
Court granted the petition and vacated the panel's judgment and
opinion.
       **
         Following argument, Judge Van Antwerpen took senior
status on October 23, 2006, but continues to take part in this
matter pursuant to Internal Operating Procedure 9.6.4.

                               2
Theodore B. Smith, III (Argued)
Eric Pfisterer
Kimberly A. Kelly
Office of United States Attorney
228 Walnut Street
220 Federal Building and Courthouse
P.O. Box 11754
Harrisburg, PA 17108
       Attorneys for Appellee,
       United States of America

Lawrence S. Lustberg
Michael A. Baldassare
Gibbons, Del Deo, Dolan,
Griffinger & Vecchione
One Riverfront Plaza
Newark, NJ 07102-5497
      Attorneys for Amicus-Appellant,
      National Association of Federal
      Defenders and National Association
      of Criminal Defense Lawyers




               OPINION OF THE COURT




                            3
FISHER, Circuit Judge.
       The Supreme Court held in United States v. Booker, 543
U.S. 220 (2005), that facts relevant to the advisory United States
Sentencing Guidelines need not be submitted to a jury. We now
confirm that these facts likewise do not require proof beyond a
reasonable doubt.
                                I.
       It all started with a lost bicycle. The bike was owned by
Juan Navarro but had been commandeered by his sister. She
was holding it, with the support of her boyfriend, Sean Michael
Grier, as a form of security against Navarro’s promise to pay a
cable bill. Navarro did not approve of this arrangement.
       He confronted Grier and demanded the bike. Grier
refused. Navarro said: “[T]here’s gonna be some problems if
I don’t have my bike back.” Grier responded: “[L]et the
problem be right here and now.”
       Navarro swung at Grier. The punch did not connect, and
the two men fell struggling to the ground. Several witnesses
warned Navarro that Grier had a gun. A shot was fired. When
the two men separated, Grier was holding a gun. Neither had
been struck by the bullet or sustained serious injury.
        Grier pointed the gun at Navarro. Navarro attempted to
rush at Grier but was held back by other individuals. Grier
pointed the gun upward and fired a single shot. Both men then
left the scene. Grier discarded the firearm in a nearby trash can.
       A police investigation ensued. Officers found the
discarded gun, and a background check revealed that it had been

                                4
stolen. Grier was soon arrested on state charges of aggravated
assault, receiving stolen property, and unlawful possession of a
firearm. These counts were dismissed in August 2003.
       Grier was subsequently charged by federal indictment
with possession of a firearm by a convicted felon, in violation of
18 U.S.C. § 922(g)(1), and possession of a stolen firearm, in
violation of 18 U.S.C. § 922(j). He pled guilty to the first count;
the second count was dismissed pursuant to a plea agreement.
        A presentence report was prepared. It assessed a four-
level enhancement pursuant to § 2K2.1(b)(5) as Grier used the
firearm in connection with another felony offense,1 namely an
aggravated assault under Pennsylvania law. See 18 Pa. Cons.
Stat. § 2702.2 This finding resulted in a four-level enhancement


       1
        Application note 4 to U.S.S.G. § 2K2.1(b)(5) explains
that the four-level enhancement for using the firearm in
connection with another felony offense may be assessed
“whether or not a criminal charge was brought, or conviction
obtained.” U.S. Sentencing Guidelines Manual § 2K2.1(b)(5)
cmt. n.4.
       2
       Pennsylvania law defines aggravated assault as follows:
       A person is guilty of aggravated assault if he:
             (1) attempts to cause serious bodily
             injury to another, or causes such
             injury intentionally, knowingly or
             recklessly under circumstances
             manifesting extreme indifference to
             the value of human life; [or]

                                5
in Grier’s offense level under the United States Sentencing
Guidelines, raising it from 23 to 27, see U.S. Sentencing
Guidelines Manual § 2K2.1(b)(5), and a fifty percent increase
in the recommended imprisonment range, raising it from 84 to
105 months to 120 to 150 months, see id. ch. 5, pt. A. The final
Guidelines range, in light of the statutory maximum sentence of
ten years, see 18 U.S.C. § 924(a)(2), was 120 months. See U.S.
Sentencing Guidelines Manual § 5G1.1.
        Grier objected to the four-level enhancement, and a
sentencing hearing was held on February 25, 2005. The parties
argued briefly over the correct burden of proof. Defense
counsel claimed that the reasonable-doubt standard should apply
while counsel for the government maintained that a
preponderance standard should govern. The District Judge
agreed with the government: “I believe that the standard
currently is preponderance, [and] until [I have] something more
definitive from the Court of Appeals, it’s what I’ll use.”
        The only witness to testify at the hearing was Navarro.
He described the altercation and stated that he had not possessed
a firearm or any other weapon on his person at the time. He
admitted, however, that he had not seen Grier “pull” the gun
from his clothing:


             ...
             (4) attempts to cause or
             intentionally or knowingly causes
             bodily injury to another with a
             deadly weapon . . . .
18 Pa. Cons. Stat. § 2702(a).

                               6
       I don’t know if the gun fell out [of Grier’s
       pockets] or whatever. People was telling me that
       he was taking the gun out. And from there, that’s
       when everybody tried to get the gun away from
       him.
        Defense counsel argued that the enhancement should not
apply because Grier had acted in self-defense. She also asserted
that, under Pennsylvania law, Grier was guilty not of aggravated
assault but of “simple assault by mutual consent,” a lesser-
graded version of simple assault punishable by imprisonment for
one year or less. See 18 Pa. Cons. Stat. §§ 1104, 2701.3 This



       3
        Pennsylvania law defines simple assault, including the
exception for mutual consent, as follows:
       (a) Offense defined.–A person is guilty of assault
       if he:
              (1) attempts to cause or
              inten tio n a lly, know ingly or
              recklessly causes bodily injury to
              another;
              (2) negligently causes bodily injury
              to another with a deadly weapon;
              [or]
              (3) attempts by physical menace to
              put another in fear of imminent
              serious bodily injury . . . .
       (b) Grading.–Simple assault is a misdemeanor of
       the second degree unless committed . . . in a fight
       or scuffle entered into by mutual consent, in

                               7
crime is not considered a “felony” under the Guidelines, see
U.S. Sentencing Guidelines Manual § 2K2.1 cmt. n.1, and
would not support the enhancement.
       The District Court adopted the presentence report,
including the finding of aggravated assault and concomitant
enhancement. It also granted a downward departure of two
offense levels “in light of [Navarro’s] conduct, which was partly
responsible for the four[-]point enhancement.” With this
departure, the range of imprisonment prescribed by the
Guidelines was reduced to 100 to 120 months.
       The District Court recognized that the Guidelines were
advisory but nevertheless imposed a term of imprisonment of
100 months, within the recommended range. It justified this
sentence in a single statement: “The Court believes that 100
months is reasonable in view of the considerations of [18 U.S.C.
§] 3553(a).” Defense counsel did not object to the District
Court’s explanation for the sentence.
        This timely appeal followed. Grier argues that the
District Court erred in applying a preponderance standard to
facts relevant to the four-level enhancement, in finding that he
had committed aggravated assault under Pennsylvania law, and
in imposing sentence without fully articulating its consideration
of the factors under 18 U.S.C. § 3553(a). We have jurisdiction
over these claims under 18 U.S.C. § 3742(a) and 28 U.S.C.



       which case it is a misdemeanor of the third degree
       ....
18 Pa. Cons. Stat. § 2701.

                               8
§ 1291. See United States v. Cooper, 437 F.3d 324, 327 (3d Cir.
2006).
                               II.
        There is no doubt that Booker, by rendering the United
States Sentencing Guidelines advisory rather than mandatory,
“brought about sweeping changes in the realm of federal
sentencing.” United States v. Davis, 407 F.3d 162, 163 (3d Cir.
2005). But there is every reason to believe that the Supreme
Court intended that the practices that have guided us and other
courts in the twenty years since the Guidelines were first
promulgated would continue to govern sentencing in the federal
courts.
        Under an advisory Guidelines scheme, district courts
should continue to make factual findings by a preponderance of
the evidence and courts of appeals should continue to review
those findings for clear error. The only change in the equation
is that, at the end of the day, the district court is not bound by
the recommended Guidelines range, but must impose a sentence
based on all the factors articulated in § 3553(a). The court of
appeals must then decide whether that final sentence is
“reasonable.”
                               A.
       The primary issue in this case is whether the Due Process
Clause requires facts relevant to enhancements under the United
States Sentencing Guidelines, particularly those that constitute
a “separate offense” under governing law, to be proved beyond
a reasonable doubt. The Supreme Court did not reach this issue
in Booker, see 543 U.S. at 259, and we declined to address it in

                                9
Cooper, 437 F.3d at 330 & n.7. Nevertheless, we believe that
the discussion in Booker regarding the Jury Trial Clause of the
Sixth Amendment applies with equal force to the Due Process
Clause of the Fifth Amendment. See Apprendi v. New Jersey,
530 U.S. 466, 484 (2000) (discussing these “associated”
provisions). Once a jury has found a defendant guilty of each
element of an offense beyond a reasonable doubt, he has been
constitutionally deprived of his liberty and may be sentenced up
to the maximum sentence authorized under the United States
Code without additional findings beyond a reasonable doubt.
                                1.
       The constitutional guarantees of “trial . . . by an impartial
jury,” U.S. Const. amend. VI, and “due process of law,” U.S.
Const. amend. V, stand as a bulwark of individual liberty. They
interpose between the legislature and the court the community’s
own judgment as to the existence of a crime. Only if a jury of
an individual’s peers concludes beyond a reasonable doubt that
he or she committed each element of the charged offense, as
defined by the legislature, may the court impose punishment.
Booker, 543 U.S. at 230 (citing United States v. Gaudin, 515
U.S. 506, 511 (1995)).
       This principle is rooted in common law considerations of
fundamental fairness. See, e.g., Blakely v. Washington, 542 U.S.
296, 301-02, 305-07, 311-12 (2004); Apprendi, 530 U.S. at 476-
77; Harris v. United States, 536 U.S. 545, 556-68 (2002)
(plurality opinion). Individuals must be provided notice of the
consequences of their conduct. They must be informed of the
nature of illegal acts, through legislative definition of the
elements of punishable crimes, and of the possible sentences for

                                10
those offenses upon conviction. See Blakely, 542 U.S. at 301-
02, 306-07, 311-12; Apprendi, 530 U.S. at 476-77, 489-94;
Harris, 536 U.S. at 556-68. Under the Fifth and Sixth
Amendments, individuals have a right to demand that each and
every element of the alleged crime be submitted to a jury and
proved beyond a reasonable doubt before sentence is imposed.
It follows, then, that the fundamental question for these
purposes is what facts constitute the “elements” of a “crime.”
       The answer was provided in Apprendi: the facts
constituting the elements of a crime are those that increase the
maximum punishment to which the defendant is exposed under
governing law. Apprendi, 530 U.S. at 490. This conclusion was
based on a simple syllogism. A crime is defined as conduct that
is punishable by the state. Conduct is punishable by the state
when it exposes the individual to new or additional penalties.
Therefore, any conduct that exposes an individual to punishment
or increases the maximum punishment to which he or she is
otherwise exposed must be deemed a crime. The predicate facts
of such conduct constitute the “elements” of the “crime.” Id. at
483 & n.10 (citing Jones v. United States, 526 U.S. 227, 244-48
(1999)); see also id. at 500-01 (Thomas, J., concurring).
        It is to these facts, and to these facts alone, that the rights
to a jury trial and proof beyond a reasonable doubt attach. “The
Fifth and Sixth Amendments ensure that the defendant ‘will
never get more punishment than he bargained for when he did
the crime,’ but they do not promise that he will receive
‘anything less’ than that.” Harris, 536 U.S. at 566 (quoting
Apprendi, 530 U.S. at 498 (Scalia, J., concurring)). Once an
individual has been convicted by a jury beyond a reasonable
doubt of the predicate facts of illegal conduct, triggering a

                                  11
statutory maximum penalty, a court may impose any sentence on
the individual up to that maximum. Id.
        Judicial factfinding in the course of selecting a sentence
within the permissible range does not offend the Fifth and Sixth
Amendment rights to a jury trial and proof beyond a reasonable
doubt. Harris, 536 U.S. at 556-68; Apprendi, 530 U.S. at 481-
82 (citing Williams v. New York, 337 U.S. 241, 242-47 (1949));
McMillan v. Pennsylvania, 477 U.S. 79, 89-90 (1986). An
individual who is provided such notice and is nevertheless found
by a jury beyond a reasonable doubt to have engaged in illegal
conduct has no grounds to complain when the maximum
punishment authorized by the legislature is meted out by a
judge. See Blakely, 542 U.S. at 304-05, 309; Harris, 536 U.S.
at 556-68. As the Supreme Court stated in McMillan, “[o]nce
the reasonable-doubt standard has been applied to obtain a valid
conviction, ‘the criminal defendant has been constitutionally
deprived of his liberty to the extent that the state may confine
him[,]’” in this case, the maximum allowed under Title 18 of the
United States Code. McMillan, 477 U.S. at 92 n.8 (quoting
Meachum v. Fano, 427 U.S. 215, 224 (1976)).
                                2.
       The decision in Booker instantiates these principles. In
Booker, a jury found the defendant guilty of possession with
intent to distribute at least fifty grams of cocaine base, an
offense that carried a maximum sentence of life imprisonment
under the United States Code. 543 U.S. at 227 (citing 21 U.S.C.
§ 841(a)(1), (b)(1)(a)(iii)). The United States Sentencing
Guidelines, however, prescribed a base imprisonment range of
210 to 262 months. Id. (citing U.S. Sentencing Guidelines

                               12
Manual §§ 2D1.1(c)(4), 4A1.1). During a sentencing hearing,
the trial judge found by a preponderance of the evidence that the
defendant had possessed an additional 566 grams of cocaine
base and had obstructed justice. Id. These findings increased
the Guidelines imprisonment range to 360 months to life. Id.
The judge then imposed a sentence commensurate with this
range, of thirty years. Id.
       The Supreme Court reversed. Of central importance to
its conclusion was the mandatory nature of the Guidelines. Id.
at 233-35. The Sentencing Reform Act required the district
judge to impose a sentence within the “base” range
recommended by the Guidelines, established solely by the facts
of conviction, unless certain enumerated circumstances were
found to be present. Id. (citing 18 U.S.C. § 3553(b)). In other
words, upon conviction by a jury, the maximum punishment to
which the individual was exposed was the highest point in the
base range prescribed by the Guidelines. Id. The judge lacked
authority to impose a higher sentence in the absence of
additional findings of fact. Id.
       These additional facts, under the reasoning of Apprendi,
constituted “elements” of a “crime.”              By raising the
recommended Guidelines range, they authorized the district
judge to impose a higher sentence than would be permissible
under the Sentencing Reform Act based solely on the facts of
conviction. Id. They increased the maximum sentence to which
the defendant would otherwise be exposed upon conviction by
a jury. Id. These facts were therefore properly classified as
elements of a crime, subject to the rights to a jury trial and proof
beyond a reasonable doubt. Id. (citing Apprendi, 530 U.S. at
481).

                                13
       The final sentence imposed in Booker was nearly ten
years more than the base range prescribed by the Guidelines. Id.
The range had been increased based on findings made by the
sentencing judge, without submission to a jury. Id. This
violated the defendant’s rights under the Sixth Amendment, as
defined in Apprendi.
       This conclusion not only necessitated reversal of the
defendant’s sentence; it cast doubt on the constitutionality of the
federal sentencing regime as a whole. See id. The Guidelines
require that all facts relevant to sentencing be found by a judge
based on information presented during a post-trial hearing. Id.
There is no provision for a jury to make these determinations,
nor any reasonable means to effect this result within the existing
structure. Jury determinations are inherently incompatible with
the Guidelines scheme. Id.
        The Court resolved this problem by returning to the basis
of its holding: the constitutional infirmity of the Guidelines was
attributable to their mandatory application under the Sentencing
Reform Act. All members of the Court agreed that, if the
Guidelines were merely advisory, the Sixth Amendment
problem would fall away. Id. at 233, 259. Facts relevant to
enhancements under the Guidelines would no longer increase
the maximum punishment to which the defendant is exposed,
but would simply inform the judge’s discretion as to the
appropriate sentence. Id. These facts would then not be deemed
“elements” of a “crime” and would not trigger the rights
recognized in Apprendi. Id.
       To achieve this result, the Court “sever[ed] and
excise[d]” two statutory provisions: “the provision that requires

                                14
sentencing courts to impose a sentence within the applicable
Guidelines range (in the absence of circumstances that justify a
departure), see 18 U.S.C. § 3553(b)(1),[4] and the provision that
sets forth standards of review on appeal, including de novo
review of departures from the applicable Guidelines range, see
[18 U.S.C.] § 3742(e). [5]” Booker, 543 U.S. at 259. The


       4
       Section 3553(b)(1) provided, in pertinent part, as
follows:
      [T]he court shall impose a sentence of the kind,
      and within the range, referred to in subsection
      (a)(4) [prescribed by the United States Sentencing
      Guidelines] unless the court finds that there exists
      an aggravating or mitigating circumstance of a
      kind, or to a degree, not adequately taken into
      consideration by the Sentencing Commission in
      formulating the guidelines that should result in a
      sentence different from that described.
18 U.S.C. § 3553(b)(1).
       5
        Section 3742(e) provided, in pertinent part, as follows:
       Upon review of the record, the court of appeals
       shall determine whether the sentence–
              (1) was imposed in violation of
              law;
              (2) was imposed as a result of an
              incorrect application of the
              sentencing guidelines;
              (3) is outside the applicable
              guideline range, and . . . the

                               15
       sentence de pa r ts f r om the
       applicable guideline range based on
       a factor that . . . does not advance
       the objectives set forth in section
       3553(a)(2)[,] . . . is not authorized
       under section 3553(b)[, or] . . . is
       not justified by the facts of the
       case; or . . . the sentence departs to
       an unreasonable degree from the
       applicable guidelines range, having
       regard for the factors to be
       c o n s i d e r e d in im p o s i n g a
       sentence[;] . . . or
       (4) was imposed for an offense for
       which there is no applicable
       sentencing guideline and is plainly
       unreasonable.
The court of appeals shall give due regard to the
opportunity of the district court to judge the
credibility of the witnesses, and shall accept the
findings of fact of the district court unless they are
clearly erroneous and, except with respect to
determinations under subsection (3)(A) or (3)(B),
shall give due deference to the district court’s
application of the guidelines to the facts. With
respect to determinations under subsection (3)(A)
or (3)(B), the court of appeals shall review de
novo the district court’s application of the
guidelines to the facts.

                         16
excision of these provisions rendered the Guidelines advisory,
freeing the trial judge to impose any sentence permitted under
the United States Code using the calculated Guidelines range as
only one of seven considered factors. Id. The maximum
legislatively authorized punishment to which the defendant is
exposed is no longer the maximum prescribed by the Guidelines;
instead, it is the maximum prescribed by the United States Code.
Id. Therefore, findings of fact relevant to the Guidelines need
not be submitted to a jury. Id.
         The Court noted that the “remainder of the Act
‘function[s] independently.’” Id. (quoting Ala. Airlines, Inc. v.
Brock, 480 U.S. 678, 684 (1987)). District courts must still
conduct the full Guidelines analysis in every case. They must
still resolve disputed issues of fact and explain the basis for any
departures. The only change is that the final Guidelines range
does not bind the district court, but merely serves as one of a
number of factors to be considered in fashioning the ultimate
sentence. Id. at 259-60. Of course, for Sixth Amendment
purposes, this change makes all of the difference. See id.
                                3.
       The Supreme Court in Booker did not address the
applicability of the right to proof beyond a reasonable doubt in
an advisory Guidelines system. This is easily explained: it had
no reason to do so. The question presented in Booker was
“[w]hether the Sixth Amendment is violated by the imposition
of an enhanced sentence under the United States Sentencing



18 U.S.C. § 3742(e).

                                17
Guidelines based on the sentencing judge’s determination of a
fact . . . that was not found by the jury or admitted by the
defendant.” Petition for a Writ of Certiorari, Booker, 543 U.S.
220 (No. 04-104).6 The absence of discussion of the Fifth
Amendment is not an implicit recognition that the right to proof
beyond a reasonable doubt applies at sentencing. Rather, it
simply reflects the limited scope of the grant of certiorari.
        There can be no question, in light of the holding of
Booker and the reasoning of Apprendi, that the right to proof
beyond a reasonable doubt does not apply to facts relevant to
enhancements under an advisory Guidelines regime. Like the
right to a jury trial, the right to proof beyond a reasonable doubt



       6
        We note here that the same question was answered in
Cunningham v. California, No. 05-6551, 2007 WL 135687
(Jan. 22, 2007), which was recently decided by the Supreme
Court. Cunningham, like Booker, considered a mandatory
sentencing regime under the Sixth Amendment and found that
California’s sentencing scheme, which required a judge to
sentence a defendant to a middle range unless she conducted
additional fact-finding, violated the Sixth Amendment as
elucidated in Apprendi, Blakely and Booker.                While
Cunningham reinforces the Supreme Court’s recent holdings
regarding a defendant’s right to a jury determination of any fact
that increases his sentence beyond the statutory maximum, it
does not affect our opinion in this case. The challenge before us
is a Fifth Amendment challenge to an advisory sentencing
scheme rather than a Sixth Amendment challenge to a
mandatory sentencing scheme.

                                18
attaches only when the facts at issue have the effect of
increasing the maximum punishment to which the defendant is
exposed. Apprendi, 530 U.S. at 489-94. The advisory
Guidelines do not have this effect. They require the district
judge to make findings of fact, but none of these alters the
judge’s final sentencing authority. Booker, 543 U.S. at 233.
They merely inform the judge’s broad discretion. Id.
       Post-Booker, the punishments chosen by Congress in the
United States Code determine the statutory maximum for a
crime. The Code identifies the facts necessary to establish an
offense and any aggravating circumstances (e.g., significant
drug quantity, use of a firearm, injury to a victim) that increase
the statutory maximum punishment. These facts must be
established beyond a reasonable doubt. Apprendi, 530 U.S. at
490. But, once these facts are found, triggering the statutory
maximum, the judge may impose a sentence anywhere under
that maximum without jury determinations and proof beyond a
reasonable doubt. Harris, 536 U.S. at 565-67; Williams, 337
U.S. at 242-47.
        By excising the provisions of the United States Code
requiring mandatory application of the United States Sentencing
Guidelines, the Supreme Court in Booker altered the
constitutional impact of the Guidelines. None of the facts
relevant to enhancements or departures under the Guidelines can
increase the maximum punishment to which the defendant is
exposed. E.g., United States v. Tannis, 942 F.2d 196, 198 (3d
Cir. 1991); see also U.S. Sentencing Guidelines Manual
§ 5G1.1. The Due Process Clause thus affords no right to have
these facts proved beyond a reasonable doubt. Harris, 536 U.S.
at 558 (“Judicial factfinding in the course of selecting a sentence

                                19
within the authorized range does not implicate the . . .
reasonable-doubt component[] of the Fifth . . . Amendment[].”).
        This holding accords with the decisions of each of our
sister circuits that has addressed this issue. See, e.g., United
States v. Dorcely, 454 F.3d 366, 372 (D.C. Cir. 2006); Cirilo-
Munoz v. United States, 404 F.3d 527, 532-33 (1st Cir. 2005);
United States v. Gonzalez, 407 F.3d 118, 125 (2d Cir. 2005);
United States v. Barton, 455 F.3d 649, 657-58 (6th Cir. 2006);
McReynolds v. United States, 397 F.3d 479, 481 (7th Cir. 2005);
United States v. Okai, 454 F.3d 848, 852 (8th Cir. 2006); United
States v. Dare, 425 F.3d 634, 642 (9th Cir. 2005); United States
v. Magallanez, 408 F.3d 672, 685 (10th Cir. 2005); United
States v. Duncan, 400 F.3d 1297, 1304-05 (11th Cir. 2005).
                               4.
      Grier rejects the rationale of these decisions and proposes
a novel standard under which the right to proof beyond a
reasonable doubt would attach to facts relevant to the Guidelines
when those facts constitute a “separate offense.” He finds
support for this position in Jones v. United States, 526 U.S. 227
(1999), and Apprendi. This reliance is misplaced.
        The question presented in Jones was whether a provision
of the federal carjacking statute raising the maximum penalty for
crimes involving “serious bodily injury” should be interpreted
as an element of the crime, to which the right to proof beyond a
reasonable doubt applies, or as a mere sentencing enhancement.
526 U.S. at 229. The Supreme Court found, based on
comparisons with other state and federal provisions defining
aggravated robbery and assault as separate offenses, that
“Congress probably intended serious bodily injury to be an

                               20
element defining an aggravated form of the crime.” Id. at 236.
On this basis, it held that the fact of “serious bodily injury” must
be submitted to a jury and proved beyond a reasonable doubt.
Id. at 232-33, 251-52.
       Jones was a statutory interpretation case.           The
comparison of the “serious bodily injury” provision to other,
separate offenses was merely a means of gauging Congress’s
probable intent. Id. at 232-36. It was not a statement of
constitutional doctrine and did not purport to base the right to
proof beyond a reasonable doubt on whether the facts at issue
constitute an independent crime. Id.
        The only discussion of constitutional rights in Jones is in
the subsidiary context of the interpretative canon of avoidance.
Id. at 239-40. The Supreme Court noted that the “serious bodily
injury” provision of the carjacking statute increased the
maximum punishment to which the defendant was exposed and
therefore likely implicated the defendant’s rights to a jury trial
and proof beyond a reasonable doubt, regardless of whether the
provision was intended to operate as an “element” or an
“enhancement.” Id. at 239-52. The Court avoided the issue,
however, by finding that Congress anticipated that the provision
would stand as a separate “element,” to which these rights
undisputedly applied. Id. at 251-52.




                                21
       There is no question of statutory interpretation here.7 The


       7
        In his brief, Grier argues that we should use the doctrine
of constitutional avoidance and read § 3553(a) or, alternatively,
U.S.S.G. § 6A1.3(a) to require proof beyond a reasonable doubt.
The doctrine of constitutional avoidance applies “[w]here an
otherwise acceptable construction of a statute would raise
serious constitutional problems.” Edward D. Debartolo Corp.
v. Florida Gulf Coast Bldg. & Const. Trades Council, 485 U.S.
568, 575 (1988). In such instances, “the Court will construe the
statute to avoid such problems unless such construction is
plainly contrary to the intent of Congress.” Id. Before this
canon of interpretation may be used, there must exist a doubt as
to the meaning of the statute. Section 3553(a) states that “[t]he
court shall impose a sentence sufficient, but not greater than
necessary, to comply with the purposes set forth in paragraph (2)
of this subsection.” It makes no reference to any burden of
proof. To read into this provision a requirement that findings be
made beyond a reasonable doubt would fly in the face of the
statutory language. U.S.S.G. § 6A1.3(a) likewise does not
present sufficiently ambiguous language. It instructs that a court
“may consider information without regard to its admissibility
under the rules of evidence applicable at trial, provided that the
information has sufficient indicia of reliability to support its
probable accuracy.” The commentary that accompanies § 6A1.3
reads: “The Commission believes that use of a preponderance
of evidence standard is appropriate . . . .” U.S. Sentencing
Guidelines Manual § 6A1.3 cmt. n.2. To construe § 6A1.3(a) as
requiring proof beyond a reasonable doubt would be “plainly
contrary to the intent of Congress.” Debartolo Corp., 485 U.S.

                               22
Guidelines were clearly intended by Congress to operate as
sentencing factors, not as elements of a crime. The lack of
clarity regarding congressional intent that compelled the
Supreme Court in Jones to examine whether “serious bodily
injury” could be analogized to an independent crime is simply
not present here.
        This is a constitutional case, governed by the rule of
Apprendi: the rights to a jury trial and to proof beyond a
reasonable doubt attach to those facts that increase the statutory
maximum punishment to which the defendant is exposed. 530
U.S. at 490. This standard is not based upon the legislature’s
definition of a fact as an “element” or “enhancement,” id. at
498-90, or upon a formalistic “multifactor parsing of statutes,”
id. at 501 (Thomas, J., concurring). Nor does it depend on
whether the facts in question can be described as a “separate
offense,” a concept that appears nowhere in Supreme Court
jurisprudence in this field except in the statutory discussion of
Jones. 526 U.S. at 232-36. Considering whether Grier’s
conduct might fit within the definition of another crime is no
more than what sentencing judges traditionally did under
indeterminate sentencing schemes. As the Supreme Court stated
in McMillan, there is no way to distinguish the finding of this
kind of “separate offense” “from a host of other express or
implied findings sentencing judges typically make on the way to
passing sentence.” McMillan, 447 U.S. at 92 n.8. The sole
question under Apprendi is whether the fact at issue increases



at 575. The doctrine of constitutional avoidance is, therefore,
inappropriate in this case.

                               23
the maximum punishment to which the defendant is exposed.
530 U.S. at 490, 494 (“[T]he relevant inquiry is one not of form,
but of effect – does the required finding expose the defendant to
a greater punishment than that authorized by the jury’s guilty
verdict?”).
        Facts relevant to application of the Guidelines – whether
or not they constitute a “separate offense” – do not have this
effect. E.g., Tannis, 942 F.2d at 198; see also U.S. Sentencing
Guidelines Manual § 5G1.1. They inform the district court’s
discretion without limiting its authority. They therefore do not
constitute “elements” of a “crime” under the rationale of
Apprendi and do not implicate the rights to a jury trial and proof
beyond a reasonable doubt. 530 U.S. at 490.
                                5.
        The District Court in this case concluded that the burden
of proof for facts relevant to sentencing was preponderance of
the evidence. This standard is suggested by the Guidelines, see
U.S. Sentencing Guidelines Manual § 6A1.3 cmt., is not
precluded by the Fifth or Sixth Amendments, see Booker, 543
U.S. at 259 (“the remainder of the act functions independently”),
and has been approved by this Court, see, e.g., United States v.
Mobley, 956 F.2d 450, 455 (3d Cir. 1992).8



       8
        In United States v. Kikumura, 918 F.2d 1084 (3d Cir.
1990), we held that sentencing enhancements that “can fairly be
characterized as a ‘tail which wags the dog of the substantive
offense’ must be proved by ‘clear and convincing evidence.’”
Id. at 1100-01 (citing McMillan v. Pennsylvania, 477 U.S. 79,

                               24
       We will affirm the District Court’s decision to apply the
preponderance standard to all facts relevant to the Guidelines,
including the finding that Grier committed the offense of
conviction in connection with an aggravated assault under
Pennsylvania law.
                                B.
       That the District Court applied an acceptable burden of
proof does not, of course, mean that its findings of fact should
be upheld. We have traditionally reviewed factual findings
relevant to sentencing under a “clearly erroneous” standard.
See, e.g., United States v. Lennon, 372 F.3d 535, 538 (3d Cir.
2004). The parties apparently assume that the same standard
should govern in this case.
       However, the issue is not so clear cut. The Supreme
Court in Booker excised subsection (e) of 18 U.S.C. § 3742, the
provision of the United States Code that defined the appropriate
standard of review for issues relevant to sentencing. 543 U.S.
at 259. It held that appellate courts should thereafter review the



88 (1986)). While we acknowledge that the statutory and
constitutional underpinnings of that case may be questioned by
the Supreme Court’s reasoning in Booker, this case does not
present a factually similar case to Kikumura. Kikumura’s
sentence was enhanced from 27-30 months to 30 years in prison.
In this case, there was ultimately no departure from the
recommended Guidelines range, as the 100-month sentence was
within the initial 84- to 105-month Guidelines range. Therefore,
it is not necessary for us to reach the current status of Kikumura.

                                25
ultimate sentence for “reasonableness.”         Id. at 260-63.
Unfortunately, it did not specify whether the clearly erroneous
standard should continue to apply to factual findings bearing on
the advisory Guidelines range.
                                1.
        Three options for a standard of review are available.
First, courts of appeals could simply refuse to review factual
findings relevant to the Guidelines on the ground that they do
not govern the district court’s final discretionary sentence. See
United States v. Mickelson, 433 F.3d 1050, 1052-55 (8th Cir.
2006). Second, they could review factual determinations for
“reasonableness,” the standard suggested by Booker for review
of the ultimate sentence. See 543 U.S. at 261. Third, courts
could continue to review findings for “clear error.” See Lennon,
372 F.3d at 538.
        The first alternative, under which appellate courts would
decline to review factual findings relevant to the Guidelines, is
clearly untenable. District courts are required, under 18 U.S.C.
§ 3553(a), to consider the range prescribed by the Guidelines in
imposing sentence on a defendant. Id. § 3553(a)(4); see also
Booker, 543 U.S. at 261; Cooper, 437 F.3d at 329-32. The only
manner by which this range can be determined is through a
series of factual findings, adjusting the defendant’s offense level
and criminal history category. An error in these findings will
result in an error in the recommended sentencing range and,
thus, will necessarily impact the district court’s assessment of
the factors of 18 U.S.C. § 3553(a). Appellate review of the
district court’s factual conclusions is essential to ensure its
compliance with statutory mandates. See United States v.

                                26
Haack, 403 F.3d 997, 1003 (8th Cir.), cert. denied, 126 S. Ct.
276 (2005).
        The second alternative, under which courts of appeals
would review findings of the district court for “reasonableness,”
is also unfeasible. The Supreme Court explained in Booker that
review for “reasonableness” is meant to assess the ultimate
sentence impose, to determine whether the sentencing judge
gave meaningful consideration to the factors of 18 U.S.C.
§ 3553(a). 543 U.S. at 260-61. Nothing in Booker suggests that
the same standard is to be applied to evaluate the quantum of
evidence offered in support of a particular finding of fact, even
one that played a role in the court’s final sentence. Indeed,
application of the “reasonableness” standard, with its broad
focus on policy goals, would be incompatible with review of
factual findings. See United States v. Mashek, 406 F.3d 1012,
1015 (8th Cir. 2005).
       Review for clear error offers the sole viable approach.
The Supreme Court in Booker excised the “clearly erroneous”
standard from 18 U.S.C. § 3742(e) only because other aspects of
that subsection included impermissible references to a
mandatory Guidelines scheme. 543 U.S. at 260. Just as the
Supreme Court interposed the “reasonableness” standard to fill
in the gap for review of the ultimate sentence, the clearly
erroneous standard fills in the gap for review of particular
factual determinations.
       Other courts of appeals have unanimously, if implicitly,
adopted this approach. United States v. Robinson, 433 F.3d 31,
38 (1st Cir. 2005); United States v. Castillo, 430 F.3d 230, 238-
39 (5th Cir. 2005); United States v. Garcia, 413 F.3d 201, 221-

                               27
22 (2d Cir. 2005); United States v. Davidson, 409 F.3d 304, 310
(6th Cir. 2005); United States v. Mashek, 406 F.3d 1012, 1016
(8th Cir. 2005); United States v. Bothun, 424 F.3d 582, 585-86
(7th Cir. 2005); United States v. Smith, 424 F.3d 992, 1015 (9th
Cir. 2005), cert. denied, 126 S. Ct. 1477 (2006); United States
v. Clark, 415 F.3d 1234, 1246 (10th Cir. 2005); United States v.
Ebersole, 411 F.3d 517, 536 (4th Cir. 2005), cert. denied, 126
S. Ct. 1142 (2006); United States v. Crawford, 407 F.3d 1174,
1177 (11th Cir. 2005). Indeed, we have previously suggested
that the clearly erroneous standard would continue to apply post-
Booker. See United States v. Miller, 417 F.3d 358, 362-63 (3d
Cir. 2005) (“Nothing in Booker . . . necessarily calls into
question the correctness of the District Court’s factual findings
or procedural decisions at the resentencing, or, for that matter,
this court’s [previous] approval thereof.”); United States v.
Pojilenko, 416 F.3d 243, 247 (3d Cir. 2005) (reviewing factual
findings relevant to sentencing for clear error).
       Despite the excision of subsection (e) of 18 U.S.C.
§ 3742, this Court will continue to review factual findings
relevant to the Guidelines for clear error and to exercise plenary
review over a district court’s interpretation of the Guidelines.
See, e.g., Robinson, 433 F.3d at 35. “A finding is ‘clearly
erroneous’ when[,] although there is evidence to support it, the
reviewing [body] on the entire evidence is left with the definite
and firm conviction that a mistake has been committed.”
Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers
Pension Trust for S. Cal., 508 U.S. 602, 622 (1993) (quoting
United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
A sentence imposed as a result of a clearly erroneous factual
conclusion will generally be deemed “unreasonable” and,

                               28
subject to the doctrines of plain and harmless error, will result
in remand to the district court for resentencing. E.g., Robinson,
433 F.3d at 35; see also Booker, 543 U.S. at 268.
                               2.
        Grier challenges the finding in this case that he
committed aggravated assault. Aggravated assault is defined
under Pennsylvania law as an “attempt[] to cause serious bodily
injury to another . . . under circumstances manifesting extreme
indifference to the value of human life” or an “attempt[] to
cause . . . bodily injury to another with a deadly weapon.” 18
Pa. Cons. Stat. § 2702(a). An “attempt” may be found “when,
with intent to commit a specific crime, [the individual] does any
act which constitutes a substantial step toward the commission
of that crime.” Id. § 901(a); see also Commonwealth v. Hall,
830 A.2d 537, 541-42 (Pa. 2003).
       At the sentencing hearing, Navarro testified that he did
not enter the fight with any weapons. The firearm was produced
in some manner during the course of the altercation, and other
individuals warned Navarro that Grier had a gun.9 Soon



       9
        Defense counsel argues that the statements by these
bystanders were “classic hearsay.” This may be true, but the
Federal Rules of Evidence do not apply at sentencing, see Fed.
R. Evid. 1101(d)(3); see also Kikumura, 918 F.2d at 1099-1100,
and counsel does not argue that Navarro’s recollection of the
statements was so unreliable as to preclude admission under the
liberal standards governing these proceedings, see U.S.
Sentencing Guidelines Manual § 6A1.3(a) (“In resolving any

                               29
thereafter, the gun discharged. When the two combatants stood
up, Grier was holding the weapon, aimed at Navarro. Grier then
pointed the gun toward the sky, fired a single shot, and left the
scene.
       The precise circumstances of the fight are matters of
reasonable speculation. It is arguable – and is argued by Grier
on appeal – that the record shows that the gun accidentally
dropped from his pocket during the altercation, and that his
subsequent actions were intended merely to dissuade Navarro
from continuing the fight. But the District Court found that
Grier intentionally pulled the gun from his clothing and, while
the two men were on the ground, fired a shot in an attempt to
harm or kill Navarro. He thereafter rose and aimed the gun once
again at Navarro but, for whatever reason, decided to fire the
weapon skyward and withdraw from the fight.
       “Where, as here, the district court makes no independent
findings of fact in relation to sentencing issues, but instead
adopts the reasons set forth by the probation officer in the
presentence investigation report, we view the report as
containing the only findings of fact that support the court's
sentencing decision.” United States v. Collado, 975 F.2d 985,
990 (3d Cir. 1992). However, because in this case the
presentence investigation report does not contain any specific


dispute concerning a factor important to the sentencing
determination, the court may consider relevant information
without regard to its admissibility under the rules of evidence
applicable at trial, provided that the information has sufficient
indicia of reliability to support its probable accuracy.”).

                               30
reasons to support its finding of aggravated assault and the
District Court heard testimony from the victim and did not make
any further findings on the question, we will refrain from
reviewing its determination regarding the aggravated assault
until it has stated more explicitly how it reached Grier’s
sentence.
                               C.
      We lack a sufficient record to review Grier’s sentence for
“reasonableness.” The touchstone of “reasonableness” is
whether the record as a whole reflects rational and meaningful
consideration of the factors enumerated in 18 U.S.C.
§ 3553(a).10 Cooper, 437 F.3d at 329-32; see also Booker, 543


       10
         These factors include:
       (1) the nature and circumstances of the offense
       and the history and characteristics of the
       defendant;
       (2) the need for the sentence imposed–
               (A) to reflect the seriousness of the
               offense, to promote respect for the law,
               and to provide just punishment for the
               offense;
               (B) to afford adequate deterrence to
               criminal conduct;
               (C) to protect the public from further
               crimes of the defendant; and
               (D) to provide the defendant with needed
               educational or vocational training, medical
               care, or other correctional treatment in the

                               31
U.S. at 261. It must be clear that the district court understood
and reasonably discharged its obligation to take all of the
relevant factors into account in imposing a final sentence. E.g.,
Cooper, 437 F.3d at 329-32.
      The record in this case is simply too sparse to allow us to
conclude that the District Court honored its statutory duty.11 The


              most effective manner;
      (3) the kinds of sentences available;
      (4) the kinds of sentence and the sentencing range
      established for . . . the applicable category of
      offense committed by the applicable category of
      defendant as set forth in the guidelines . . . issued
      by the Sentencing Commission[;] . . .
      (5) any pertinent policy statement . . . issued by
      the Sentencing Commission[;] . . .
      (6) the need to avoid unwarranted sentence
      disparities among defendants with similar records
      who have been found guilty of similar conduct;
      and
      (7) the need to provide restitution to any victims
      of the offense.
18 U.S.C. § 3553(a).
       11
         An objection to the reasonableness of the final sentence
will be preserved if, during sentencing proceedings, the
defendant properly raised a meritorious factual or legal issue
relating to one or more of the factors enumerated in 18 U.S.C.
§ 3553(a). See Cooper, 437 F.3d at 329 (citing United States v.
Cunningham, 429 F.3d 673, 679 (7th Cir. 2005)). The

                               32
only explanation of the sentence provided by the District Court
was: “The Court believes that 100 months is reasonable in view
of the considerations of section 3553(a).” This statement, as a
justification of the sentence, leaves much to be desired. It is
devoid of substantive content and offers little assistance to an
appellate tribunal reviewing the sentence.
       More elaboration is necessary. The Sentencing Reform
Act mandates that the District Court “consider” the factors of 18
U.S.C. § 3553(a). Id. The record must disclose meaningful
consideration of the relevant statutory factors and the exercise
of independent judgment, based on a weighing of the relevant
factors, in arriving at a final sentence. Cooper, 437 F.3d at
329-32.
       The rationale by which a district court reaches a final
sentence is important. It offers the defendant, the government,
the victim, and the public a window into the decision-making
process and an explanation of the purposes the sentence is
intended to serve. It promotes respect for the adjudicative
process, by demonstrating the serious reflection and deliberation
that underlies each criminal sentence, and allows for effective
appellate oversight.
       We will remand this case to allow the District Court to
resentence the defendant. We do not suggest that the original
sentence reflects anything less than the sound judgment of the



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

                               33
District Judge, or that the final sentence should necessarily
differ from the one previously imposed. The nature of the final
sentence is, as always, a matter within the discretion of the
District Court. We do ask, however, that the District Court
explain its decision on the record, specifically by reference to
the factors of 18 U.S.C. § 3553(a) and further elaboration on its
findings regarding the factual underpinnings of the assault
enhancement.
                               III.
       The opinion in Booker did not alter the burden of proof
or the standard of review for findings of fact relevant to
sentencing. But it did, by rendering the United States
Sentencing Guidelines advisory rather than mandatory, place a
premium on thorough explication of sentencing decisions. A
reasoned and rational justification for a sentence is necessary to
assure the parties of the fairness of the proceedings, to instill
public confidence in the judicial process, and to allow for
effective appellate review.
        The explanation offered by the District Court does not
provide us with a sufficiently detailed explanation that lends
itself to effective review. It simply recites the necessity of
compliance with 18 U.S.C. § 3553(a) without expressly
considering the relevant statutory factors. While the original
sentence was most likely the product of comprehensive and
thoughtful deliberation, the record does not reflect that fact. We
will remand this case to allow the District Court to reconsider
the factors of 18 U.S.C. § 3553(a) on the record and then to
resentence the defendant.



                               34
       The judgment of sentence will be vacated and this case
will be remanded to the District Court for further proceedings
in accordance with this opinion.


RENDELL, Circuit Judge, concurring.
       I agree with Judge Fisher’s excellent reasoning and
result. However, I write separately because I believe that due
process concerns regarding the standard of proof at sentencing
are minimal, if not non-existent, when the sentence is below the
statutory maximum, as it was here.
       Grier argues that due process requires that other
potentially criminal conduct relied on by the sentencing judge to
enhance his sentence must be proven beyond a reasonable doubt.
This is incorrect. The Supreme Court stated in McMillan v.
Pennsylvania, 477 U.S. 79 (1986) that “[o]nce the
reasonable-doubt standard has been applied to obtain a valid
conviction, ‘the criminal defendant has been constitutionally
deprived of his liberty to the extent that the State may confine
him.’” Id. at 92 n.8 (quoting Meachum v. Fano, 427 U.S. 215,
224 (1976)). In other words, once convicted of a crime, the
defendant can be punished to the extent punishment is allowed
by statute for that crime without implicating due process.
       Judge Sloviter quotes with specific emphasis Justice
Thomas’s partial dissent in Booker and his statement that “any
fact that increases the sentence beyond what could have been
lawfully imposed on the basis of facts found by the jury or
admitted by the defendant” must be proved beyond a reasonable
doubt. United States v. Booker, 543 U.S. 220, 319 n.6 (2005)

                               35
(Thomas, J., dissenting in part). Here, there was no such
increase by the sentencing judge, because the Guidelines are
advisory and Grier was sentenced below the statutory maximum
of 120 months.
       Due process requires only that the sentence for the crime
of conviction not exceed the statutory maximum, and here the
sentence was within that limit. The spectre of another “crime”
impacting Grier’s sentence would be troublesome from a due
process standpoint only if we were concerned that Grier’s
sentence was in fact based predominantly on conduct wholly
collateral to his convicted crime. This concern animated our
opinion in United States v. Kikumura, 918 F.2d 1084 (3d Cir.
1990), and was explicated very clearly in Judge Rosenn’s
concurrence in that case.12 As noted by Judge Fisher in the
majority opinion, supra p. 24, n. 8, here there is no claim that
the sentencing court did anything other than consider the
evidence of assault as relevant conduct normally considered in




       12
         See Kikumura, 918 F.2d at 1120 (Rosenn, J.,
concurring) (discussing Kikumura’s 30-year sentence following
conviction for explosives and passport offenses and stating that
“because of the extreme departure involved here for the separate
offense of attempted murder, it seems evident that the
Government and the sentencing judge did not consider
Kikumura’s attempt to kill as collateral but primary”) (emphasis
in original).

                              36
connection with sentencing for the offense of conviction.13 Due
process accordingly is not implicated.


AMBRO, Circuit Judge, concurring in judgment.
       Sean Grier is in prison in part for a crime for which he
was never indicted, never tried, and never convicted. His
sentence is based to some extent on a judicial finding, by a
preponderance of the evidence, that he committed the crime of
aggravated assault. This practice may be efficient. It may often
reflect what “really” happened. But in my view it is not
consistent with our Bill of Rights.14


       13
         In this connection, our pre-Booker discussion in United
States v. Mobley, 956 F.2d 450, 456-59 (3d Cir. 1992) of due
process considerations in sentencing was correct and should not
be disturbed.
       14
          See United States v. Booker, 543 U.S. 220, 244 (2005)
(“[I]n some cases jury factfinding may impair the most
expedient and efficient sentencing of defendants. But the
interest in fairness and reliability protected by the right to a jury
trial—a common-law right that defendants enjoyed for centuries
and that is now enshrined in the Sixth Amendment—has always
outweighed the interest in concluding trials swiftly.”); Blakely
v. Washington, 542 U.S. 296, 313 (2004) (“[O]ur decision
cannot turn on whether or to what degree trial by jury impairs
the efficiency or fairness of criminal justice.”); Apprendi v. New
Jersey, 530 U.S. 466, 498 (2000) (Scalia, J., concurring) (“The
founders of the American Republic were not prepared to leave

                                 37
                                I.
       With its landmark ruling in Apprendi, the Supreme Court
began to reinvigorate an important principle: “[D]ue process and
associated jury protections extend, to some degree, to
determinations that go not to a defendant’s guilt or innocence,
but simply to the length of his sentence.” 530 U.S. at 484
(brackets and internal quotation marks omitted). What our
Court does today, however, confirms Justice Stevens’s lament
that the Supreme Court in Booker “effectively eliminated the
very constitutional right Apprendi sought to vindicate.” 543
U.S. at 302 (Stevens, J., dissenting in part). In response, I
believe that a less manipulable rule should be set—that



[criminal justice] to the State, which is why the jury-trial
guarantee was one of the least controversial provisions of the
Bill of Rights. It has never been efficient; but it has always been
free.”); United States v. Kandirakis, 441 F. Supp. 2d 282, 302
(D. Mass. 2006) (Young, J.) (“That our laws routinely require a
defendant’s sentence to be based upon what a judge believes an
offender ‘really’ did, as opposed to the actual crime of which he
was convicted by the jury, is nothing less than offensive—let
alone unconstitutional.”); 4 W ILLIAM B LACKSTONE ,
C OMMENTARIES ON THE L AWS OF E NGLAND 343–44 (1769)
(“[H]owever convenient [‘arbitrary methods of trial’] may
appear at first, (as doubtless all arbitrary powers, well executed,
are the most convenient) yet let it again be remembered, that
delays, and little inconveniences in the forms of justice, are the
price that all free nations must pay for their liberty in more
substantial matters . . . .”).

                                38
constitutional protections apply not only to those facts that
authorize the “statutory maximum” (as phrased by Apprendi),
see 530 U.S. at 490, but to every fact (save prior convictions)
identified by the law itself as deserving of additional
punishment, no matter what that fact may be called.15 Only in
this way can the principles of Apprendi—followed through in


       15
          See United States v. Reese, 92 U.S. 214, 232 (1875)
(Clifford, J., concurring) (“[T]he indictment must contain an
allegation of every fact which is legally essential to the
punishment to be inflicted.”); Kandirakis, 441 F. Supp. 2d at
303 (Young, J.) (“If the law identifies a fact that warrants
deprivation of a defendant’s liberty or an increase in that
deprivation, such fact must be proven to a jury beyond a
reasonable doubt.”); Mark D. Knoll & Richard G. Singer,
Searching for the “Tail of the Dog”: Finding “Elements” of
Crimes in the Wake of McMillan v. Pennsylvania, 22 S EATTLE
U. L. R EV. 1057, 1062–67 (1999) (“The general rule that every
fact which constitutes an aggravation of the offense had to be
alleged and proved to a jury beyond a reasonable doubt is
reflected in numerous state court opinions and early English
cases, as well as in early federal cases.” (footnotes omitted)
(citing 2 S IR M ATTHEW H ALE, H ISTORIA P LACITORUM C ORONAE
(1736))); Hon. Boyce F. Martin, Jr., The Cornerstone Has No
Foundation: Relevant Conduct in Sentencing and the
Requirements of Due Process, 3 S ETON H ALL C ONST. L.J. 25,
30–31 (1993) (“Once Congress creates a sentencing system
which eliminates discretion and requires specific findings of
‘actual criminal conduct,’ it creates positive law which must
abide by the Due Process Clause.”).

                              39
Blakely, Booker, and, most recently, Cunningham 16 —be fully
respected.
       The concept is simple: if our society, through its law,
deems a certain fact worth punishing (or warranting additional
punishment), then the Constitution commands certain procedural
protections attending the finding of that fact. Rather than
following this principle of fundamental fairness, however, our
law— by way of the Federal Sentencing
Guidelines—criminalizes activity “on the cheap.” Despite
Apprendi and its progeny, we continue to allow sentencing
judges, once a jury has found beyond a reasonable doubt that a
defendant has committed one crime, then to find him guilty by
a preponderance of the evidence of other crimes for which he
was not tried—or worse, tried and acquitted—and to sentence
him as if he had been convicted of them as well. In effect, we
have a shadow criminal code under which, for certain suspected
offenses, a defendant receives few of the trial protections
mandated by the Constitution.
       Yet, much as my sympathies align with the principles
explained in Judge Sloviter’s and Judge McKee’s superb
dissents, I have concluded that I am bound by Supreme Court
precedent to concur in the judgment of the majority in this case.
To create a sentencing process that fully carries through on the
promise of Apprendi and Blakely, I believe the Supreme Court
would have to overrule, at least, McMillan v. Pennsylvania, 477
U.S. 79 (1986) (allowing “sentencing factors” that enhance


       16
      Cunningham v. California, No. 05-6551, 549 U.S. ___,
2007 WL 135687 (U.S. Jan. 22, 2007).

                               40
punishment to be proven by a preponderance of the evidence),
and Harris v. United States, 536 U.S. 545 (2002) (reaffirming
McMillan after Apprendi and again holding that judicial fact-
finding by a preponderance of the evidence at sentencing passes
constitutional muster).
        Many, including Justice Breyer in Harris itself, have
been unable to reconcile McMillan and Harris with the Supreme
Court’s holding in Apprendi. See 536 U.S. at 569–70 (Breyer,
J., concurring).17 But “it is th[e] [Supreme] Court’s prerogative
alone to overrule . . . its own precedents.” State Oil Co. v. Khan,
522 U.S. 3, 20 (1997). This it has not yet done. For this reason
alone, I join the result reached by the majority.18 I do not join its
opinion because, among other things, I do not agree with its
suggestion that the Due Process Clause has no force in criminal
sentencing.


       17
         The majority here finds much support in Harris when
reasoning that the Apprendi line of cases dictates the outcome in
this case. Significantly, however, all of the majority’s citations
to Harris are from a section of that opinion that did not have the
support of a majority of the Justices. Justice Breyer, Harris’s
fifth vote, did not believe that the holding of Harris was
consistent with Apprendi; he voted with the majority only
because he did not agree with Apprendi. See Harris, 536 U.S.
at 569–70 (Breyer, J., concurring). Given that Apprendi has
been repeatedly reaffirmed since Harris, thus strengthening its
stare decisis effect, the majority here must surely recognize the
danger in relying on Harris for support.
       18
            I also join Parts II.B and II.C of the majority opinion.

                                  41
                               II.
       Both the majority and dissenting opinions contend that
the Supreme Court’s Apprendi line of cases, culminating at the
federal level with Booker, dictates the answer to the question
presented here. It does not.
        Apprendi holds that, “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to
a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490.
The majority correctly notes that Apprendi’s holding is rooted
in the jury right of the Sixth Amendment, not the right to due
process guaranteed by the Fifth, Maj. Op., supra, at 17–18;
Apprendi speaks only of the reasonable-doubt standard for jury
verdicts as a “companion” to the jury guarantee, see 530 U.S. at
478.19 Moreover, nothing in Apprendi’s progeny—particularly
Blakely and Booker—altered its Sixth Amendment basis. In
Blakely, the Supreme Court provided further clarification of
what was meant by Apprendi’s use of the term “statutory
maximum,” saying that it refers not to “the maximum sentence
a judge may impose after finding additional facts, but the


       19
         See also Apprendi, 530 U.S. at 490 (“‘[I]t is
unconstitutional for a legislature to remove from the jury the
assessment of facts that increase the prescribed range of
penalties to which a criminal defendant is exposed. It is equally
clear that such facts must be established by proof beyond a
reasonable doubt.’” (emphasis added, third alteration in original)
(quoting Jones v. United States, 526 U.S. 227, 252–53 (1999)
(Stevens, J., and Scalia, J., in separate concurrences)).

                               42
maximum he may impose without any additional findings.” 542
U.S. at 303–04 (first emphasis added). In Booker, Justice
Stevens’s merits opinion simply took that definition and applied
it to the Federal Sentencing Guidelines. 543 U.S. at 233
(“[T]here is no distinction of constitutional significance between
the Federal Sentencing Guidelines and the Washington
procedures at issue in [Blakely].”). In short, because facts found
by judges led to Guidelines sentences that had “the force and
effect of laws” (i.e., they constituted statutory maximums under
Apprendi and Blakely), the Guidelines as they stood were
unconstitutional. Id. at 234.
        Justice Breyer’s majority opinion in Booker remedied this
constitutional infirmity not by having juries find Guidelines
facts, but instead by unmaking the Guidelines as statutory
maximums—“sever[ing] and excis[ing]” those portions of the
U.S. Code that made them binding on sentencing and appellate
courts. See 18 U.S.C. §§ 3553(b)(1), 3742(e); Booker, 543 U.S.
at 245, 258–65. This fix unmade the top of the Guidelines
ranges as statutory maximums (which Justice Stevens, for the
Court, had just held them to be), and turned the relevant focus
to the maximum sentences set out in the U.S. Code. After
Booker, then, the Sixth Amendment does not require Guidelines
facts to be proven to a jury; instead, juries must find only those
facts that increase the applicable maximum sentence as reflected
in the U.S. Code.
      Few, I suspect, disagree with this analysis. For our case,
though, it is as unhelpful as it is obvious. The issue here is not
what the Sixth Amendment requires, but rather what is



                               43
consistent with due process as protected by the Fifth
Amendment.20
                                A.
       Though Apprendi speaks only of the burden of proof for
a jury verdict that is required by the Fifth Amendment right to
due process as a “companion” to the Sixth Amendment jury
right, 530 U.S. at 478, this is understandable: the Sixth
Amendment is Apprendi’s principal focus. Predictably, no
majority opinion in Blakely or Booker (which only expounded
on Apprendi) even mentions the Fifth Amendment or due
process. It is somewhat perplexing, then, that the majority here
invokes “the reasoning of Apprendi” and “the holding of
Booker”—both Sixth Amendment cases—to explain its Fifth
Amendment due process ruling in this case. Maj. Op., supra, at
18. Though every fact that must be found by a jury must also be
found beyond a reasonable doubt, this does not mean that those


       20
         Though some have argued that the doctrine of
constitutional avoidance counsels in favor of applying a
reasonable-doubt standard in the post-Booker finding of
Guidelines facts, see, e.g., Memorandum from Steven T. Wax
and Stephen R. Sady to Federal Public Defenders (Jan. 31,
2005), at http://www.federaldefenders.org/blog_doubtredux.pdf,
I agree with the majority that the doctrine does not apply here,
see Maj. Op., supra, at 22–23 n.7. Though Judge Sloviter
argues that the comment to § 6A1.3 in the Guidelines is
inapplicable to this case, Dis. Op., infra, at 80–82 (Sloviter, J.,
dissenting), I consider that policy statement to be directly on
point, thus precluding invocation of the doctrine.

                                44
facts not required to be found by a jury do not have to be found
beyond a reasonable doubt. The Supreme Court demonstrated
long ago that the Fifth Amendment sometimes requires
application of the reasonable-doubt standard to facts not found
by a jury. See In re Winship, 397 U.S. 358, 359–60, 365–68
(1970) (holding on due process grounds that findings in a
juvenile criminal proceeding must be found beyond a reasonable
doubt, even though not determined by a jury).
       While I believe the majority’s holding will yield a result
consistent with Supreme Court precedent in most cases, its
reasoning, which intimates that Booker’s Sixth Amendment
holding addresses and solves all due process issues relating to
the burden of proof for Guidelines facts, is too sweeping. See
Maj. Op., supra, at 19 (“The Due Process Clause . . . affords no
right to have [Guidelines facts] proved beyond a reasonable
doubt.” (emphasis added)). More importantly, it is also
inconsistent with McMillan, which, unlike Booker, provides the
most complete answer to the issue presented here.
        In McMillan, the Supreme Court upheld a Pennsylvania
statute that mandated a minimum term of imprisonment upon a
judicial finding, by a preponderance of the evidence, that the
defendant “‘visibly possessed a firearm’ during the commission
of the [underlying] offense.” 477 U.S. at 81. The Court rejected
the defendant’s contention that due process required the finding
of a sentencing factor be made on a heightened standard of
proof (either proof beyond a reasonable doubt or by clear and
convincing evidence). Id. at 91. Explaining its decision, the
Court reasoned that “[s]entencing courts have traditionally heard
evidence and found facts without any prescribed burden of proof
at all,” and saw “nothing in Pennsylvania’s scheme that would

                               45
warrant constitutionalizing burdens of proof at sentencing.” Id.
at 91–92. It noted the undeniable constitutionality of a
sentencing scheme where “the legislature had simply directed
the court to consider visible possession in passing sentence.” Id.
at 92 (emphasis in original). Given this, there was no reason
“why the due process calculus would change simply because the
legislature has seen fit to provide sentencing courts with
additional guidance.” Id. McMillan, therefore, provides that
facts relevant only to sentencing must be proven only by a
preponderance of the evidence—if a particular standard is
required at all.
       In Apprendi, decided 14 years after McMillan, the
Supreme Court addressed the viability of that holding: “The
principal dissent accuses us of today ‘overruling McMillan.’ We
do not overrule McMillan. We limit its holding to cases that do
not involve the imposition of a sentence more severe than the
statutory maximum for the offense established by the jury’s
verdict . . . .” 530 U.S. at 487 n.13. Two years later, in Harris,
the Court specifically took up the question of “whether
McMillan stands after Apprendi” and reaffirmed it. 536 U.S. at
550, 568. Necessarily, therefore, the Fifth Amendment
(pursuant to McMillan) must protect the finding of some facts
below the statutory maximum, even if the Sixth Amendment
(pursuant to Apprendi) does not.
       For the federal system (and this case), this is where
Booker becomes relevant. Even after Apprendi, everyone
assumed that the “statutory maximum” of which it spoke
referred to the maximum sentence set out in the U.S. Code. See
Dis. Op., infra, at 111 (McKee, J., dissenting) (citing United
States v. Leahy, 438 F.3d 328, 345 & n.16 (3d Cir. 2006)

                               46
(McKee, J., dissenting) (citing cases)). The logic of Blakely
suggested that this assumption was not correct,21 and Justice
Stevens’s merits opinion in Booker confirmed as much—the top
of a mandatory Guidelines range constituted a statutory
maximum, the determinative facts of which must be found by a
jury beyond a reasonable doubt. Just as soon as Justice
Stevens’s merits opinion in Booker declared the Federal
Sentencing Guidelines unconstitutional, however, Justice Breyer
ushered them out of “Apprendi-land” 22 to constitutional safety.
They are now “advisory” and no longer constitute statutory
maximums as defined in Apprendi and Blakely.23



       21
         See John Gleeson, The Road to Booker and Beyond:
Constitutional Limits on Sentence Enhancements, 21 T OURO L.
R EV. 873, 882–83 (2006) (“From the perspective of the lower
federal courts, Blakely might as well have said, ‘We hold that
the statutory maximum sentence is not the statutory maximum
sentence.’”); Kevin R. Reitz, The New Sentencing Conundrum:
Policy and Constitutional Law at Cross-Purposes, 105 C OLUM.
L. R EV. 1082, 1091 (2005) (“Here was the huge surprise in
Blakely: that a guideline presumption nested within broader
statutory parameters should itself be understood as a statutory
maximum.”).
       22
        Ring v. Arizona, 536 U.S. 584, 613 (2002) (Scalia, J.,
concurring).
       23
        Judge McKee makes a powerful argument that the
Guidelines’ continued significance in federal sentencing
nevertheless implicates the holdings of Apprendi and Blakely.

                              47
       Therefore, Justice Breyer’s opinion in Booker, which


Dis. Op., infra, Part I.A (McKee, J., dissenting). Though he
disavows any attempt to “undermine Booker,” Dis. Op., infra,
at 117 n.52 (McKee, J., dissenting), his argument accomplishes
just that. Its logic is that “considering” the Guidelines—as
required by Booker’s remedial opinion—renders them just as
essential to (and determinative of) a defendant’s punishment as
they were pre-Booker. In making this case, Judge McKee has
good company. See United States v. Henry, No. 04-3076, ___
F.3d ___, 2007 WL 79011, at *11 (D.C. Cir. Jan. 12, 2007)
(Kavanaugh, J., concurring) (noting that “current federal
sentencing practices may be in tension with the Constitution . . .
because the current system—in practice—works a lot like the
pre-Booker system”); Kandirakis, 441 F. Supp. 2d at 289–99
(Young, J.) (“[T]he Guidelines—and their judge-made factual
findings—are still the driving force behind federal
sentencing.”); Michael W. McConnell, The Booker Mess, 83
D ENVER U. L. R EV. 665, 677 (“The jury verdict is no more
consequential after Booker than before.”). Indeed, Justice Scalia
made the same point in his dissent to Booker’s remedial opinion.
See 543 U.S. at 311–13 (predicting that Booker’s remedy would
create de facto mandatory Guidelines). The reality is, however,
the same Court to strike down the judge-based, mandatory
Guidelines system as unconstitutional also issued the remedy: a
judge-based, advisory Guidelines scheme. No matter how
compelling Judge McKee’s reasoning may be, it must fail, as it
cannot be unconstitutional under current doctrine for a
sentencing judge to do exactly what the Supreme Court has
instructed be done.

                               48
remedied the Guidelines’ Sixth Amendment infirmity, put
federal sentencing with regard to the Fifth Amendment back
where it was before Justice Stevens’s merits opinion in Booker
was decided. And as explained above, Apprendi and Harris
made clear that McMillan still sets out the Fifth Amendment
rule applicable to the burden of proof for sentencing factors,
which generally is a preponderance of the evidence.
Technically, therefore, it is not Apprendi, Blakely, or Booker
that solve the due process question here, as suggested by the
majority. Instead, it is McMillan.24


       24
          I must also, therefore, respectfully disagree with my
dissenting colleagues, who argue that Apprendi and Blakely
operate post-Booker to require proof beyond a reasonable doubt
for the Guidelines fact at issue here—whether Grier committed
an aggravated assault. That the Guidelines are no longer
mandatory makes all the constitutional difference as far as those
cases are concerned. As Justice Stevens’s merits opinion in
Booker said, “If the Guidelines as currently written could be
read as merely advisory provisions that recommended, rather
than required, the selection of particular sentences in response
to differing sets of facts, their use would not implicate the Sixth
Amendment.” 543 U.S. at 233; see also Apprendi, 530 U.S. at
481. That is exactly what Justice Breyer’s remedial opinion in
Booker purported to do. But see supra, note 23.
        Both Judge Sloviter and Judge McKee highlight the
Supreme Court’s statement in Blakely that “‘the ‘statutory
maximum’ for Apprendi purposes is the maximum sentence a
judge may impose solely on the basis of the facts reflected in the
jury verdict or admitted by the defendant’” in arguing that

                                49
Apprendi can apply under the statutory maximum. Dis. Op.,
infra, at 95 (Sloviter, J., dissenting) (quoting Blakely, 542 U.S.
at 303 (emphasis in Blakely)); see also Dis. Op., infra, at 108
(McKee, J., dissenting). I believe, however, that they overlook
a critical qualifier in that statement: the word “may.” For only
if the Guidelines are mandatory, as they were pre-Booker, is
Blakely violated. Under that system, a judge could not sentence
a defendant above the Guidelines range associated with the base
offense level for the offense of conviction without finding
additional facts. But because Justice Breyer’s remedial opinion
in Booker “sever[ed] and excis[ed]” the statutory provisions
making the Guidelines mandatory on sentencing and appellate
courts, a judge “may” impose any sentence made available by
the statute of conviction, regardless of any additional facts he
may or may not find. The jury verdict alone now sets the
bounds of a judge’s sentencing discretion; therefore, Blakely
does not decide this case.
        Nothing in the Supreme Court’s recent Cunningham
decision alters this conclusion. Cunningham, like the merits
decision in Booker, is nothing more than a simple application of
Blakely—this time to California’s determinate sentencing law.
See Cunningham, 2007 WL 135687, at *10 n.10 (“California’s
[law] . . . resembles pre-Booker federal sentencing in the same
ways Washington’s sentencing system did [in Blakely] . . . .”).
Thus, Cunningham does not inform the law applicable here in
any material way, as Judge Sloviter and Judge McKee argue.
See Dis. Op., infra, at 91–92, 97 (Sloviter, J., dissenting); Dis.
Op., infra, Part IV (McKee, J., dissenting).
        Judge Sloviter argues at length that Jones v. United

                               50
States, 526 U.S. 227 (1999), compels the conclusion she
reaches. See Dis. Op., infra, at 84–89 (Sloviter, J. dissenting).
Her argument is that because (1) there would have been “grave
and doubtful constitutional questions” in Jones if the statute in
that case were interpreted other than how it was (i.e., that it
established three separate crimes), Jones, 526 U.S. at 239, and
(2) that “[t]he Jones factual scenario does not differ markedly
from that presented in this case,” Dis. Op., infra, at 85 (Sloviter,
J., dissenting), the Constitution thus requires that separate-crime
sentencing enhancements be proven beyond a reasonable doubt.
        It is not debatable, though, that Jones employed the
doctrine of constitutional avoidance to reach its result. See
Jones, 526 U.S. at 251–52; see also Cunningham, 2007 WL
135687, at *7. That doctrine “is not a method of adjudicating
constitutional questions by other means. Indeed, one of [its]
chief justifications is that it allows courts to avoid the decision
of constitutional questions.” Clark v. Martinez, 543 U.S. 371,
381 (2005) (citations omitted, emphasis in original). Therefore,
Judge Sloviter’s reliance on Jones is misplaced, for that case did
not answer any constitutional questions. Rather, those difficult
questions were answered later—in Apprendi, Blakely, and
Booker. See Booker, 543 U.S. at 237 (noting that concerns over
modern sentencing practices “led us to the answer first
considered in Jones and developed in Apprendi and subsequent
cases culminating with this one [Booker].” (emphasis added));
see also Cunningham, 2007 WL 135687, at *7 (“[T]he Jones
opinion presaged our decision, some 15 months later, in
Apprendi v. New Jersey.” (citation omitted)).

                                51
         This technicality can be significant, however, because
McMillan provided caveats to its general Fifth Amendment
rule—caveats which the Apprendi line does not create in the
Sixth Amendment context. See Cunningham, 2007 WL 135687,
at *11, 12, 21, 22 (referring to Apprendi’s “bright-line rule”);
Blakely, 542 U.S. at 308 (contrasting Apprendi’s “bright-line
rule” with McMillan). And this is where the majority and I part
company in this case, as the rule it announces does not allow for
exception. See Maj. Op., supra, at 11 (“It is to these facts
[‘elements’ of the ‘crime’], and these facts alone, that the right[]
to . . . proof beyond a reasonable doubt attach[es].” (emphasis
added)). I echo Judge Sloviter on this point: “Can the majority
really be suggesting that the Due Process Clause . . . is never
applicable to any sentencing issue?” Dis. Op., infra, at 84
(Sloviter, J., dissenting). If that is its intention, the majority is
simply incorrect. Even more disturbing, the majority needlessly
calls into question one of the few cases ever to apply McMillan
and require a heightened burden of proof for sentencing factors.
See Maj. Op., supra, at 24–25 n.8 (citing United States v.
Kikumura, 918 F.2d 1084, 1100 (3d Cir. 1990) (holding that
Guidelines facts having a disproportionate effect on the sentence
must be proven by clear and convincing evidence)).
        In McMillan the Supreme Court spent considerable time
detailing exactly what about the Pennsylvania statute at issue
there led to the conclusion that it did not violate due process. In
effect, the discussion sets out various conditions that, if found
to be otherwise, can lead to the conclusion that a sentencing
factor must be proven to a higher evidentiary standard despite
the general rule. First, the Pennsylvania statute in McMillan did
not “discard[] the presumption of innocence” or “create . . .

                                 52
[evidentiary] presumptions” that “relieve the prosecution of its
burden of proving guilt.” McMillan, 477 U.S. at 87. Second,
the statute did not “alter[] the maximum penalty for the crime
committed []or create[] a separate offense calling for a separate
penalty.” Id. at 87–88. Third, the statute and its structural
context in Pennsylvania law did not appear to be an attempt by
the State to “‘evade’ the commands of Winship” that elements
of a crime be proven beyond a reasonable doubt. Id. at 89. As
an indication of this, the Court noted that the sentencing factor
at issue—visible possession of a firearm—had not “historically
been treated ‘in the Anglo-American legal tradition’ as requiring
proof beyond a reasonable doubt.” Id. at 90 (quoting Patterson
v. New York, 432 U.S. 197, 226 (1977) (Powell, J., dissenting)).
        Lower courts eventually distilled these considerations
into a single, metaphorical standard used in McMillan itself—“a
tail which wags the dog.” 477 U.S. at 88 (“The [Pennsylvania]
statute gives no impression of having been tailored to permit the
visible possession finding to be a tail which wags the dog of the
substantive offense.”). What this elusive standard means in
practice is discussed shortly, but for present purposes what is
important is that, just as much as its general holding,
McMillan’s canine metaphor is still the Fifth Amendment’s
mandate when it comes to the burden of proof for sentencing
factors. See Blakely, 542 U.S. at 307–08 (refusing to adopt
McMillan’s Fifth Amendment standard for the Sixth
Amendment, necessarily implying that it still governs Fifth
Amendment burden-of-proof questions); Apprendi, 530 U.S. at
487 n.13 (discussed above); Harris, 536 U.S. at 550, 568
(discussed above).



                               53
       Four years after McMillan, our Court was the first to
apply the tail-that-wags-the-dog standard to require a heightened
burden of proof for Guidelines facts. In United States v.
Kikumura we held that “if the magnitude of the contemplated
departure [from the Guidelines range] is sufficiently great that
the sentencing hearing can fairly be characterized as a ‘tail
which wags the dog of the substantive offense[,]’ . . . the
factfinding underlying that departure must be established at least
by clear and convincing evidence.” 918 F.2d at 1100.25 In the
ensuing years, we often relied on Kikumura when determining




       25
        We did not rule that the appropriate standard was any
higher (i.e., beyond a reasonable doubt) only because the
defendant had not argued for it. See Kikumura, 918 F.2d at
1101.

                               54
the appropriate standard of proof for Guidelines facts,26 as did
courts across the country.27


       26
         See, e.g., United States v. Mack, 229 F.3d 226, 232–35
(3d Cir. 2000) (holding that an increase of 39% in Guidelines
range and 12% in actual sentence did not require the relevant
sentencing factors to be found by clear and convincing
evidence); United States v. Paster, 173 F.3d 206, 216–17 (3d
Cir. 1999) (noting that the Government conceded that a clear-
and-convincing standard was proper for the nine-level departure
it sought); United States v. Baird, 109 F.3d 856, 865 n.8 (3d Cir.
1997) (holding that a five-level departure did not “present the
rare circumstance” presented in Kikumura); United States v.
Bertoli, 40 F.3d 1384, 1409–10 (3d Cir. 1994) (applying
Kikumura to a factual finding which dictated a 50-fold upward
departure from the criminal fine as calculated in accordance
with the Guidelines); United States v. Seale, 20 F.3d 1279,
1287–89 (3d Cir. 1994) (requiring proof by clear and convincing
evidence when the enhancement resulted in a seven-fold
increase in the Guidelines-calculated fine); United States v.
Mobley, 956 F.2d 450, 454–59 (3d Cir. 1992) (holding that an
enhancement raising the Guidelines range from 15–21 months
to 21–27 months did not violate due process).
       27
         See, e.g., United States v. Mezas de Jesus, 217 F.3d
638, 642–45 (9th Cir. 2000) (citing United States v. Restrepo,
946 F.2d 654, 659–60 (9th Cir. 1991) (adopting Kikumura), and
requiring an uncharged kidnapping to be found by clear and
convincing evidence when such a finding would result in a nine-
level Guidelines enhancement and the resulting sentencing range

                               55
to increase from 31–27 months to 57–71 months); United States
v. Gigante, 94 F.3d 53, 56 (2d Cir. 1996) (“In our view, the
preponderance standard is no more than a threshold basis for
adjustments and departures, and the weight of the evidence, at
some point along a continuum of sentence severity, should be
considered with regard to both upward adjustments and upward
departures.” (emphasis in original)); United States v. Lombard,
72 F.3d 170, 183–87 (1st Cir. 1995) (holding it to be a violation
of due process not to consider a downward departure where
defendant had been acquitted of a state-law murder charge, but
the Guidelines required an enhancement based on finding by a
preponderance of the evidence that the defendant indeed had
committed the murder, causing the Guidelines sentence to go
from 262–327 months to mandatory life imprisonment); United
States v. Mergerson, 4 F.3d 337, 344 (5th Cir. 1993) (“We
believe that, although there may be certain cases where a
sentencing fact is a ‘tail that wags the dog of the substantive
offense,’ and might arguably require a finding beyond a
reasonable doubt, this is not such a case.” (citations omitted));
United States v. Lam, 966 F.2d 682, 688 (D.C. Cir. 1992)
(reserving the question of whether the clear-and-convincing
standard might be necessary in “extraordinary circumstances”);
United States v. Trujillo, 959 F.2d 1377, 1382 (7th Cir. 1992)
(holding that the facts supporting a six-level increase in the base
offense level did not require a heightened standard of proof, but
noting the Seventh Circuit’s prior approval of Kikumura in
United States v. Schuster, 948 F.2d 313, 315 (7th Cir. 1991));
United States v. Townley, 929 F.2d 365, 369–70 (8th Cir. 1991)
(refusing to “foreclose the possibility that in an exceptional case,

                                56
       Consequently, when the majority here says “there is every
reason to believe that the Supreme Court intended that the
practices that have guided us and other courts in the twenty
years since the Guidelines were first promulgated would
continue to govern sentencing in the federal courts,” Maj. Op.,
supra, at 9, but then goes on to “question[]” an important part of
our due process sentencing jurisprudence from those same
twenty years, Maj. Op., supra, at 24–25 n.8, there is a
disconnect. Kikumura, like McMillan on which it is based, still
controls burden-of-proof questions for Guidelines facts. See
United States v. Archuleta, 412 F.3d 1003, 1007–08 (8th Cir.
2005) (“Nothing in Booker changes the interpretation of
McMillan in our post-Apprendi cases.”). There is, therefore, no
need to doubt the “statutory and constitutional underpinnings of
[Kikumura],” Maj. Op., supra, at 24–25 n.8, and I do not.28


such as this one, the clear and convincing evidence standard
adopted by [Kikumura] might apply.”); United States v. St.
Julian, 922 F.2d 563, 569 n.1 (10th Cir. 1990) (adopting the
holding of Kikumura).
       28
         The Ninth Circuit Court of Appeals has ruled that its
own Kikumura jurisprudence survives Booker. See United
States v. Staten, 466 F.3d 708, 717–20 (9th Cir. 2006). There,
even the Government initially agreed that a heightened burden
of proof applied for sentencing factors having a disproportionate
effect on the sentence, though it later recanted. See id. at
717–18 & n.6.
       In contrast, the Seventh Circuit Court of Appeals, relying

                               57
       It should be of no moment that the “usual in a Kikumura
case” is for the sentencing court to rule “that the tail ha[s] not
wagged the dog.” Reuter, 463 F.3d at 793. The few defendants
who have benefitted from the minimal due process protection
that Kikumura (as subsequently interpreted) provides surely are
grateful that courts have not yet abandoned entirely the Fifth
Amendment at sentencing. I would not have us do so now.
                               B.
       To repeat, I am sympathetic to the position advanced by
Judge Sloviter and Judge McKee, who would require sentencing
enhancements that themselves constitute separate crimes be
proven beyond a reasonable doubt. The majority claims that this
position is “novel.” Maj. Op., supra, at 20. And though I
ultimately cannot join my dissenting colleagues, the principle
behind their position reflects a concern that is anything but
novel.
       Contrary to the majority’s assertion that the separate-
offense concept “appears nowhere in Supreme Court
jurisprudence,” Maj. Op., supra, at 23, that Court in fact



on the vacated panel decision in this case, has held that
Kikumura-style due process analysis did not survive Booker.
See United States v. Reuter, 463 F.3d 792, 793 (7th Cir. 2006).
However, that decision has little persuasive value because,
though the en banc majority here needlessly calls Kikumura into
doubt, it ultimately does not endorse the initial panel’s
gratuitous “overruling” of Kikumura. See Maj. Op., supra, at
24–25 n.8.

                               58
repeatedly has expressed concern over Government
manipulation of the criminal justice system by circumventing the
procedural protections of trial in order to achieve an identical
result at sentencing. See, e.g., Blakely, 542 U.S. at 307 n.11
(“Another example of conversion from separate crime to
sentence enhancement . . . is the obstruction-of-justice
enhancement. Why perjury during trial should be grounds for
a judicial sentence enhancement on the underlying offense,
rather than an entirely separate offense to be found by a jury
beyond a reasonable doubt[,] . . . is unclear.” (internal citations
omitted)). 29 Recall also that one of the several considerations


       29
          When the Supreme Court in Blakely sought to develop
the test for when the Sixth Amendment required that a jury find
a particular fact, it considered several options. The first of these
was that “the jury need only find whatever facts the legislature
chooses to label elements of the crime, and that those it labels
sentencing factors—no matter how much they may increase the
punishment—may be found by the judge.” Blakely, 542 U.S. at
306. The Court rejected this approach, however, saying that it
“would mean, for example, that a judge could sentence a man
for committing murder even if the jury convicted him only of
illegally possessing the firearm used to commit it—or of making
an illegal lane change while fleeing the death scene. Not even
Apprendi’s critics would advocate this absurd result.” Id.
        Not only does this discussion prove that my dissenting
colleagues’ concern is not novel, one would also think the
majority here might pause in the face of it. The same test
labeled “absurd” by the Supreme Court for the Sixth
Amendment is the one adopted by the majority for the Fifth

                                59
McMillan identified as significant to its due process analysis
was that the sentencing factor at issue there was not a fact that
had “historically been treated in the Anglo-American tradition
as requiring proof beyond a reasonable doubt.” 477 U.S. at 90
(internal quotation marks omitted). In other words, unlike the
enhancement at issue in this case, the sentencing factor in
McMillan did not itself constitute a crime. Far from “novel,”
therefore, the relevance of a sentencing factor also being a
separate crime in determining the applicable burden of proof
certainly exists in Supreme Court precedent.
        For two reasons, however, I cannot join Judge Sloviter or
Judge McKee in dissent. First, the rule propounded by the
dissenting opinions—like the majority opinion—is inconsistent
with McMillan, which I believe is controlling here. See supra
Part II.A & n.11. Second, that rule is incompatible with the
Supreme Court’s ruling in United States v. Watts, 519 U.S. 148
(1997), which also remains good law despite unrelenting
challenge. I will address each of these reasons in turn.
        Precedent from this and other courts that have applied
McMillan demonstrates that there are several relevant
considerations in deciding what due process requires in the
sentencing context, not simply whether a particular enhancement
is also a separate crime. As already noted, the Supreme Court
in McMillan cited no fewer than three considerations that were
significant to its holding that a heightened standard was not
required in that case, only one of which was the sentencing


Amendment (though I concede it does not produce an “absurd”
result in this instance).

                               60
factor’s traditional treatment in criminal law. See McMillan,
477 U.S. at 87–90.
        In United States v. Mobley, 956 F.2d 450, 454–59 (3d
Cir. 1992), we addressed an argument similar to the one raised
here, namely that U.S.S.G. § 2K2.1(b)(2) (now § 2K2.1(b)(4))
constituted a separate crime and, without proof of scienter,
violated the Due Process Clause. We rejected this argument,
noting the constitutional differences between trial and
sentencing. We stated that the similarity between a sentencing
enhancement and a separate statutory offense “says nothing
about whether [a defendant’s right to] due process was violated.
All it means is that under certain circumstances Congress and
the [Sentencing] Commission have set the same penalties. This
is not the situation of a tail wagging the dog; but rather, of two
dogs having tails of equal length.” Id. at 457. As we explained,
there is a “distinction among a sentence, sentence enhancement,
and definition of an offense.” Id. Consequently, we held that
even though a sentencing enhancement might also be a separate
crime, that fact does not categorically preclude its use at
sentencing, either absent a finding of scienter or, most relevant
here, on a lower standard of proof.30
       In United States v. Lombard, 72 F.3d 170 (1st Cir. 1995),
for example, the First Circuit Court of Appeals produced a


       30
          Judge Sloviter avoids Mobley only by noting that it is a
panel decision not binding on this en banc Court. See Dis. Op.,
infra, at 82–83 (Sloviter, J., dissenting). That does not make the
case incorrect, however. I believe that Mobley is “good
law”—if only because of binding Supreme Court precedent.

                               61
model due process analysis under McMillan. There, the
defendant had been acquitted of two state-law murder charges
but then was prosecuted on a federal firearms offense. On
conviction of the federal charge, the Government successfully
enhanced the defendant’s sentence based on proof by a
preponderance of the evidence that in fact he had committed the
state-law murders with the firearm that was the subject of his
federal conviction. The District Court sentenced the defendant
to life in prison pursuant to the then-mandatory Guidelines.
        The First Circuit reversed. Id. 172–74. Significantly, the
court cited no single reason. As an initial matter, the base
offense level in Lombard had been calculated, in accordance
with the Guidelines, “as if [the defendant’s] offense of
conviction had been murder.” Id. at 177. This, combined with
no statutory maximum for the underlying offense, took the
Guidelines range from 262–327 months in prison to mandatory
life imprisonment—which the court characterized as
“punishment on an entirely different order of severity.” Id. at
178. Moreover, not only did the enhancing conduct also
constitute separate crimes, the defendant had already been
acquitted of them. “Without impugning the principle that
acquitted conduct may be considered in determining a
defendant’s sentence,” the procedural history in Lombard made
clear that the Government had intended from the beginning to
use a conviction on the federal firearms charge to accomplish
what the state-law murder charges had not. Id. at 178–80. The
First Circuit then concluded,
       Given the magnitude of the sentence
       “enhancement,” the seriousness of the
       “enhancing” conduct in relation to the offense of

                               62
       conviction, and the seemingly mandatory
       imposition of the life sentence, this summary
       process effectively overshadowed the firearms
       possession charge and raises serious questions as
       to the proper allocation of the procedural
       protections attendant to trial versus sentencing.
       We would be hard put to think of a better example
       of a case in which a sentence “enhancement”
       might be described as a “tail which wags the dog”
       of the defendant’s offense of conviction.
Id. at 180 (citations omitted).
         Mobley’s and Lombard’s applications of McMillan
demonstrate that the focus of a proper McMillan analysis is not
only whether an enhancing fact constitutes a separate crime, but,
more broadly, whether that fact “constitute[s] the primary
conduct for which [the defendant] is being punished.” Mobley,
956 F.2d at 459 (emphasis added); see also Lombard, 72 F.3d at
178 (describing the enhancing facts—the murders—as having
been “treated as the gravamen of the offense”). My dissenting
colleagues’ suggested due process standard (focusing only on
the “separate crime” concept) is, therefore, both too broad and
too narrow: it would require a heightened burden of proof in
more cases than Supreme Court precedent currently supports
(i.e., all “separate crime” enhancements), but at the same time
would fail to require it in certain deserving cases (i.e., where




                                  63
“the tail wags the dog,” in that the effect of the enhancement is
too severe).31


       31
          Judge McKee reconciles McMillan with Apprendi—and
thereby escapes its import in this case—with a “conduct” versus
“crime” dichotomy he perceives in Supreme Court precedent.
He argues that the difference between McMillan on the one
hand, and Apprendi on the other, is that the former approved of
a traditional, conduct-related sentencing factor whereas the latter
disapproved of a sentencing factor that was also a separate
crime. See Dis. Op., infra, at Part I.B (McKee, J., dissenting).
I respectfully disagree with this assessment. Just as in
McMillan, neither in Apprendi nor any of the Supreme Court
cases that followed it could a defendant have been sent to jail
solely upon a finding (by a jury or otherwise) of the sentencing
factor at issue. See Apprendi, 530 U.S. at 468–69 (“purposeful
intimidation”); see also Cunningham, 2007 WL 135687, at *5
(“vulnerable victim” and “serious danger to community”);
Booker, 543 U.S. at 227 (drug quantity); Blakely, 542 U.S. at
300 (“deliberate cruelty”); Ring, 536 U.S. at 592–93
(“aggravating circumstances” for death penalty eligibility). Not
only did the sentencing schemes invalidated in those cases rely
on factors that were not separate crimes, those factors were also
of the traditional, conduct-related type that Judge McKee
approves. Rather, the dispositive distinction between the
Apprendi cases and McMillan is that the former dealt with
sentencing factors that push sentences over statutory maximums,
whereas the latter dealt with sentencing factors that only
operated below those maximums. Because the sentencing factor
at issue here is of this second variety, McMillan controls this

                                64
       Further increasing my discomfort with joining my
colleagues in dissent is the Supreme Court’s holding in United
States v. Watts. There, the Court reversed a panel of the Ninth
Circuit Court of Appeals that had held it a violation of the
Double Jeopardy Clause of the Fifth Amendment for sentencing
courts to factor into a defendant’s sentence the conduct for
which he had been acquitted. See Watts, 519 U.S. at 149. The
Court relied partly on the differing burdens of proof during trial
and sentencing to reject the Ninth Circuit’s contention that the
acquittal had some preclusive effect, restating its holding in
McMillan that “application of the preponderance standard at
sentencing generally satisfies due process.” Id. at 155–56.
Continuing the discussion, the Court said:
       [A]n acquittal in a criminal case does not preclude
       the Government from relitigating an issue when it
       is presented in a subsequent action governed by a
       lower standard of proof. The Guidelines state that
       it is appropriate that facts relevant to sentencing
       be proved by a preponderance of the evidence,
       and we have held that application of the
       preponderance standard at sentencing generally
       satisfies due process.        We acknowledge a
       divergence of opinion among the Circuits as to
       whether, in extreme circumstances, relevant
       conduct that would dramatically increase the
       sentence must be based on clear and convincing
       evidence. The cases before us today do not



case. See supra Part II.A & n.11.

                               65
       present such exceptional circumstances, and we
       therefore do not address that issue. We therefore
       hold that a jury’s verdict of acquittal does not
       prevent the sentencing court from considering
       conduct underlying the acquitted charge, so long
       as that conduct has been proved by a
       preponderance of the evidence.
Id. at 156–57 (footnote, citations, and internal quotation marks
omitted) (citing, among other cases, Lombard, 72 F.3d at
186–87, and Kikumura, 918 F.2d at 1102). Though Watts does
not address directly the due process question before us, this
passage amply demonstrates its relevance. The issue in Watts
involved the sentencing treatment of a separate offense, and I
find it instructive that the Court did not express any special
concern about that fact during the course of its McMillan and
Kikumura discussion.
       Since the Supreme Court decided Booker, several district
courts have called into question the continuing viability of
Watts.32 However, every court of appeals to have spoken on the




       32
          See, e.g., United States v. Ibanga, 454 F. Supp. 2d 532,
536–38 (E.D. Va. 2006); United States v. Coleman, 370 F. Supp.
2d 661, 668–73 (S.D. Ohio 2005); United States v. Pimental,
367 F. Supp. 2d 143, 149–53 (D. Mass. 2005); United States v.
Gray, 362 F. Supp. 2d 714, 721–22 (S.D. W. Va. 2005); United
States v. Carvajal, No. 04 CR 222AKH, 2005 WL 476125, at *5
(S.D.N.Y. Feb. 22, 2005).

                               66
question so far has held that Watts remains good law.33 Justice
Stevens’s merits opinion in Booker characterized Watts as
having “presented a very narrow question regarding the
interaction of the Guidelines with the Double Jeopardy Clause,”
Booker, 543 U.S. at 240 n.4, and was able to avoid dealing with
its holding. But as Judge McKee’s meticulous parsing of that
case indicates, see Dis. Op., infra, Part II (McKee, J.,
dissenting), doing the same here is considerably harder.34


       33
         See United States v. Mercado, No. 05-50624, ___ F.3d
___, 2007 WL 136702 (9th Cir. Jan. 22, 2007); United States v.
Gobbi, 471 F.3d 302, 313–14 (1st Cir. 2006); United States v.
Dorcely, 454 F.3d 366, 371–73 (D.C. Cir. 2006); United States
v. High Elk, 442 F.3d 622, 626 (8th Cir. 2006); United States v.
Vaughn, 430 F.3d 518, 525–27 (2d Cir. 2005); United States v.
Price, 418 F.3d 771, 787–88 (7th Cir. 2005); United States v.
Magallanez, 408 F.3d 672, 684–85 (10th Cir. 2005); United
States v. Duncan, 400 F.3d 1297, 1304–05 (11th Cir. 2005).
       34
          The very mention in Booker of Watts’s narrow holding
would seem to indicate that it is still binding on lower courts.
See Booker, 543 U.S. at 240 n.4. But even if the specific
holding of Watts survives the Supreme Court’s Apprendi
jurisprudence, the practice of considering acquitted conduct
might not. That is, even if considering acquitted conduct for
sentencing purposes does not violate the Double Jeopardy or
Due Process Clause of the Fifth Amendment, doing so might
still violate the jury right of the Sixth Amendment as expounded
by Apprendi and its progeny. Our Court has not yet spoken on
this issue, but because Grier only presses Fifth Amendment

                              67
       Therefore, in light of Watts and my prior discussion of
McMillan, I reluctantly cannot accept my dissenting colleagues’
position as consistent with controlling Supreme Court precedent.
According to that precedent, due process requires only that
sentencing factors (as denominated by Congress), including
those that also constitute separate crimes, be proven at
sentencing by a preponderance of the evidence unless they
become the “tail which wags the dog of the substantive
offense.”
                        *   *   *    *   *
       In this case, nobody—not even Grier himself—contends
that the “tail” of aggravated assault has wagged the “dog” of
firearms possession.35 The District Court calculated the initial
recommended Guidelines range at 84–105 months in prison.
Though application of the aggravated-assault enhancement
raised the applicable base offense level by four points, the



arguments, I leave it for another day.
       35
          I assume here that the facts are as found by the District
Court. However, I support the majority’s remand for a fuller
exploration and explanation of these findings and of Grier’s
ultimate sentence, see Maj. Op., supra, Parts II.B & II.C,
particularly in light of the concerns raised by Judge Sloviter’s
dissent, see Dis. Op., infra, Part III. In joining Parts II.B. and
II.C of the majority opinion, I do not understand it to be an
“affirmation of the District Court’s finding that Grier committed
an aggravated assault,” as Judge Sloviter believes. Dis. Op.,
infra, at 107 (Sloviter, J., dissenting).

                                68
District Court granted a departure of two levels because it
determined that Grier was not wholly responsible for the
circumstances that led to the assault (and thus the enhancement).
This left an advisory range of 100–120 months, after which the
District Court imposed a sentence of 100 months, which was
within the initial, unenhanced advisory Guidelines range. The
obvious conclusion is that Grier was not punished primarily for
aggravated assault. See Mobley, 956 F.2d at 459. Finding by a
preponderance of the evidence that Grier committed aggravated
assault did not result in a due process violation.
        Though someday, as I argue it should, the Constitution
may be interpreted to require that all facts the law deems worthy
of additional punishment be found by a jury beyond a reasonable
doubt (or, at the least, that a judge do so by that same standard),
binding Supreme Court precedent precludes advancing such a
position now. See supra Part I. To do so would chase the
shadow of Apprendi and Blakely while ignoring McMillan,
which requires only that sentencing factors be proven by a
preponderance of the evidence in most cases. Disturbingly, this
is so even if those facts also constitute separate crimes, as here.
        In basing my decision on McMillan and its “tail that wags
the dog” metaphor, I have not ignored the criticism it has
received as a rule of law—even from the Supreme Court that
established it. See, e.g., Blakely, 542 U.S. at 307, 308 (noting
that “[t]he subjectivity of the standard is obvious” and
describing it as “manipulable”). The difficulties in applying it,
as Judge McKee cogently demonstrates, are undeniable. See
Dis. Op., infra, Part III (McKee, J., dissenting). Its primary
virtue, however, is that it properly frames the inquiry: “For what
conduct is the defendant actually being sentenced?”

                                69
Moreover—and more importantly—McMillan’s rule is still
binding on the lower courts.
        It may be that the Justices will one day reconsider
McMillan and apply Apprendi’s bright-line rule to Fifth
Amendment questions, just as the majority here has done. Our
job, though, is not to place bets on the direction of constitutional
doctrine and gamble with defendants’ constitutional rights.
Even if it were, the majority cites nothing to indicate that the
Supreme Court would adopt its position, which only diminishes
a defendant’s constitutional protections. Indeed, a faithful
reading of the entire Apprendi line of cases—including Blakely,
Booker, and Cunningham—leads to the opposite conclusion.
See Booker, 543 U.S. at 236–37 (noting that modern sentencing
practices have “forced the Court to address the question how the
right of jury trial could be preserved, in a meaningful way
guaranteeing that the jury would still stand between the
individual and the power of the government”); see also
Cunningham, 2007 WL 135687, at *14 (“Booker’s remedy for
the Federal Guidelines . . . is not a recipe for rendering our Sixth
Amendment case law toothless.”). In this respect, Judge
Sloviter and Judge McKee eventually may be proven correct. I
hope that day comes, but it is not yet this one.
       Before concluding, I pause to stress that the majority
holds only that the reasonable-doubt standard is not required by
the Fifth Amendment when finding Guidelines facts. The
Court’s ruling applies only to the calculation of the advisory
Guidelines range at step one of the sentencing process that we
set out in United States v. Gunter, 462 F.3d 237, 247 (3d Cir.
2006). Significantly, nothing about the majority’s ruling
prevents a sentencing court from taking into account the strength

                                70
of the evidence (or lack thereof) supporting a Guidelines
enhancement when it considers the § 3553(a) factors at Gunter’s
step three—especially an enhancement that also constitutes a
separate crime.36 If it were otherwise, our holding today would
not be tenable; for then the Guidelines would not be truly
advisory, and Apprendi, Blakely, and Justice Stevens’s merits
opinion in Booker would come into full force. We must be ever
careful in our reasonableness review, therefore, not to restrict a
sentencing court’s discretion solely on the basis of the



       36
         See 18 U.S.C. § 3553(a); Gunter, 462 F.3d at 247–49;
see also Reuter, 463 F.3d at 793 (“A judge might reasonably
conclude that a sentence based almost entirely on evidence that
satisfied only the normal civil standard of proof would be
unlikely to promote respect for the law or provide just
punishment for the offense of conviction. That would be a
judgment for the sentencing judge to make and we would
uphold it so long as it was reasonable in the circumstances.”);
United States v. Dazey, 403 F.3d 1147, 1177 (10th Cir. 2005)
(“District courts might reasonably take into consideration the
strength of the evidence in support of sentencing enhancements,
rather than (as in the pre-Booker world) looking solely to
whether there was a preponderance of the evidence, and
applying Guidelines-specified enhancements accordingly.”); cf.
United States v. Vaughn, 430 F.3d 518, 527 (2d Cir. 2005)
(“[D]istrict courts should consider the jury’s acquittal [on
another charge] when assessing the weight and quality of the
evidence presented by the prosecution and determining a
reasonable sentence.”).

                               71
Guidelines, lest we recreate an unconstitutional sentencing
scheme.37
       On February 20, 2007, the Supreme Court will hear two
cases addressing the Guidelines’ proper role in post-Booker
criminal sentencing. See United States v. Rita, 177 Fed. Appx.
357, 2006 WL 1144508 (4th Cir. 2006), cert. granted, 75
U.S.L.W. 3243 (U.S. Nov. 3, 2006) (No. 06-5754) (addressing
a presumption of reasonableness for within-Guidelines
sentences); United States v. Claiborne, 439 F.3d 479 (8th Cir.



       37
          One significant danger in this regard comes from
presuming the reasonableness of a sentence within the
Guidelines range. See Stephen R. Sady, Guidelines Appeals:
The Presumption of Reasonableness and Reasonable Doubt, 18
F ED. S ENT. R. 170 (2006). Nevertheless, seven courts of appeals
have chosen to walk the constitutional line and formally accept
such a presumption. See United States v. Dorcely, 454 F.3d 366
(D.C. Cir. 2006); United States v. Green, 436 F.3d 449 (4th Cir.
2006); United States v. Alonzo, 435 F.3d 551 (5th Cir. 2006);
United States v. Williams, 436 F.3d 706 (6th Cir. 2006); United
States v. Mykytiuk, 415 F.3d 606 (7th Cir. 2005); United States
v. Lincoln, 413 F.3d 716 (8th Cir. 2005); United States v. Kristl,
437 F.3d 1050 (10th Cir. 2006). Our Court, along with three
others, has prudently not adopted this constitutionally doubtful
rule. See United States v. Cooper, 437 F.3d 324 (3d Cir. 2006);
see also United States v. Jiménez-Beltre, 440 F.3d 514 (1st Cir.
2006) (en banc); United States v. Fernandez, 443 F.3d 19 (2d
Cir. 2006); United States v. Talley, 431 F.3d 784 (11th Cir.
2005).

                               72
2006), cert. granted, 75 U.S.L.W. 3243 (U.S. Nov. 3, 2006)
(No. 06-5618) (addressing the required justification for
substantial Guidelines variances). I can only hope that with
these cases and others—in addition to harmonizing the
“discordant symphony” 38 that has developed in the lower courts
on post-Booker sentencing issues—the Supreme Court will
continue the reexamination of criminal sentencing it only
recently began. The principles that begat Apprendi and Blakely
are worthy of continued adherence. It is only “a matter of
simple justice.” Apprendi, 530 U.S. at 476.


SLOVITER, Circuit Judge, dissenting, with whom Judge
McKee joins.
       It is ironic that a Supreme Court decision that upheld two
lower court decisions holding that sentences that were based on
additional facts found by the sentencing judge by a
preponderance of the evidence violated the defendants’ Sixth
Amendment rights, United States v. Booker, 543 U.S. 220, 226
(2005), a decision that bolstered an important constitutional
right, should be viewed by the majority to authorize
enhancement of a defendant’s sentence based on the sentencing
judge’s finding by a preponderance of evidence that the
defendant committed a separate offense for which he was never



       38
         See Booker, 543 U.S. at 312 (Scalia, J., dissenting in
part) (“What I anticipate will happen is that ‘unreasonableness’
review will produce a discordant symphony of different
standards, varying from court to court and judge to judge . . . .”).

                                73
tried or convicted, a decision that erodes a well-established
constitutional right. It is even more ironic that the majority does
so in the face of the Supreme Court’s most recent opinion in
Cunningham v. California, No. 05-6551, 2007 WL 135687
(Jan. 22, 2007), where the Court reaffirmed its holdings in a
series of cases that under the Sixth Amendment it is not the trial
judge but the jury that must make the relevant finding of fact
upon which a sentencing enhancement is based, and that the jury
must make that finding beyond a reasonable doubt.
       The majority affirms the District Court’s sentence based
on its finding by a preponderance of the evidence that Grier
committed aggravated assault under Pennsylvania law even
though Grier pled guilty only to possession of a firearm by a
convicted felon and consistently denied that he committed an
aggravated assault. That this court should adopt that view of
Booker even though the Booker constitutional opinion (authored
by Justice Stevens) was directed to the protection of a
defendant’s Sixth Amendment right to a jury determination is
simply astonishing.39 The majority’s cramped view of the Sixth
Amendment has now been rejected by Cunningham, a case the
majority marginalizes in a footnote.
     I cannot accept the majority’s abnegation of the Fifth
Amendment’s imperative that a criminal defendant is entitled to


       39
        The majority does not deign to respond to Judge
Ambro’s devastating attack on its reasoning in his concurring
opinion. I believe that my references to Cunningham in my
response to the majority apply equally to the concurring
opinion’s reference to that case.

                                74
the determination of his or her guilt beyond a reasonable doubt.
The majority so holds based on its expansive interpretation of
language in the Booker opinion dealing with the remedy for the
Sixth Amendment issue (authored by Justice Breyer). Neither
of the Supreme Court’s Booker decisions discussed the Fifth
Amendment nor did they suggest that it had no role in
sentencing. Yet the majority’s decision abrogates one of the
most important, if not the most important, of the rights that the
Constitution affords criminal defendants: the right to be found
guilty only by a finding beyond a reasonable doubt.
                               I.
       The history and rationale of a criminal defendant’s right
to a determination that s/he be convicted only after a jury
determination that the defendant is guilty of the crime charged
beyond a reasonable doubt needs no extended discussion. As
the Supreme Court has stated, a Fifth Amendment challenge,
like a Fourteenth Amendment challenge, involves a
constitutional protection of “surpassing importance: the
proscription of any deprivation of liberty without ‘due process
of law.’” United States v. Apprendi, 530 U.S. 466, 476 (2000).
Although the Constitution does not explicitly require that a
finding of guilt be made under a beyond-a-reasonable-doubt
standard, the Supreme Court made that explicit when it held:
“[T]he Due Process Clause protects the accused against
conviction except upon proof beyond a reasonable doubt of
every fact necessary to constitute the crime with which he is
charged.” In re Winship, 397 U.S. 358, 364 (1970).
      The rationale for requiring that rigorous standard of proof
was discussed by Justice John Marshall Harlan II with his

                               75
incomparable analytic reasoning in his concurring opinion in In
re Winship where he expounded on the difference between the
preponderance-of-the-evidence standard of proof and the
beyond-a-reasonable-doubt standard. He explained that “even
though the labels used for alternative standards of proof are
vague and not a very sure guide to decisionmaking, the choice
of the standard for a particular variety of adjudication does . . .
reflect a very fundamental assessment of the comparative social
costs of erroneous factual determinations.” Id. at 369-70. He
further explained that “a standard of proof represents an attempt
to instruct the factfinder concerning the degree of confidence
our society thinks he should have in the correctness of factual
conclusions for a particular type of adjudication.” Id. at 370.
He continued that although the two phrases “are quantitatively
imprecise, they do communicate to the finder of fact different
notions concerning the degree of confidence he is expected to
have in the correctness of his factual conclusions.” Id.
        Justice Harlan concluded that whereas a preponderance-
of-the-evidence standard seems particularly appropriate in civil
cases between two parties for money damages where the
factfinder need determine that the existence of a fact is more
probable than its nonexistence, the criminal case stands on a
different footing. Recognizing that there is always a margin of
error in factfinding, he quoted from an earlier opinion in which
Justice Brennan stated that “‘[w]here one party has at stake an
interest of transcending value – as a criminal defendant his
liberty – this margin of error is reduced as to him by the process
of placing on the other party the burden . . . of persuading the
factfinder at the conclusion of the trial of his guilt beyond a



                                76
reasonable doubt.’” Id. at 372 (quoting Speiser v. Randall, 357
U.S. 513, 525-26 (1958)).
        The entitlement to proof beyond a reasonable doubt is “as
equally well-founded” as the right to a jury determination and is
based in the common law. See Apprendi, 530 U.S. at 478
(noting that the “demand for a higher degree of persuasion in
criminal cases was recurrently expressed from ancient times . .
. . and is now accepted in the common law jurisdictions as the
measure of persuasion by which the prosecution must convince
the trier of all essential elements of guilt”) (quotation marks and
citation omitted). And the right to jury trial “has been enshrined
since the Magna Carta.” Booker, 543 U.S. at 239.
       The question whether the Fifth Amendment right to due
process requires that the fact that formed the basis for Grier’s
four-level sentencing enhancement, i.e., that he committed a
separate felony while possessing the firearm, be found beyond
a reasonable doubt, is a question of law and is therefore subject
to plenary review.40 See United States v. Williams, 235 F.3d
858, 861 (3d Cir. 2000).
       Reiterating established principles of constitutional law,
the Court in Booker, quoting Blakely v. Washington, 542 U.S.
296, 301 (2004), stated that it is “the defendant’s right to have



       40
         Grier also alleges that we may review his sentence
because it is “unreasonable.” A sentence imposed in violation
of Grier’s Fifth Amendment rights would be imposed in
violation of the law and, therefore, unreasonable. United States
v. Cooper, 437 F.3d 324, 327–28 (3d Cir. 2006).

                                77
the jury find the existence of ‘any particular fact’ that the law
makes essential to his punishment,” Booker, at 543 U.S. at 232,
and “[i]f a State makes an increase in a defendant’s authorized
punishment contingent on the finding of a fact, that fact – no
matter how the State labels it – must be found by a jury beyond
a reasonable doubt.” Id. at 231, quoting Ring v. Arizona, 536
U.S. 584, 602 (2002). If there had been any doubt of the
applicability of the beyond-a-reasonable-doubt standard to
sentencing enhancements, it should have been put to rest by the
language of the Cunningham Court when it said, “This Court
has repeatedly held that, under the Sixth Amendment, any fact
that exposes a defendant to a greater potential sentence must be
found by a jury, not a judge, and established beyond a
reasonable doubt, not merely by a preponderance of the
evidence.” Cunningham, 2007 WL 135687, at *7 (emphasis
added).
       Disregarding the uninterrupted line of decisions that
underlay those two principles, the majority approves the
conclusion of the District Court that the burden of proof to be
applied to its determination that Grier committed an aggravated
assault was preponderance of the evidence. Maj. op. at 25. The
majority states that “[t]his standard is suggested by the
Guidelines [citing not the Guidelines but a commentary in the
U.S. Sentencing Guidelines Manual that does not support the
proposition], is not precluded by the Fifth or Sixth Amendments,
see Booker, 543 U.S. at 259 (‘the remainder of the act functions
independently’), and has been approved by this Court, see, e.g.,
United States v. Mobley, 956 F.2d 450, 455 (3d Cir. 1992).”
Maj. op. at 24. The majority errs on all three points. If these
purported supporting authorities do not support the majority’s

                               78
adoption of the preponderance-of-the-evidence standard, the
majority’s decision is without any support or precedent, the
conclusion to which I am drawn.
       The majority’s statement that its adoption of the
preponderance-of-the-evidence standard “is suggested by the
Guidelines,” its first purported authority, is just flat out wrong.
There is no Sentencing Guideline that addresses the issue of the
standard of proof in a criminal case. Indeed, that would be
beyond the authority granted to the Sentencing Commission.
         In the Booker constitutional opinion, the Court, asserting
that it would be unconstitutional for the Sentencing Commission
to define criminal elements, interpreted the Sentencing Reform
Act as authorizing the Commission only “to identify the facts
relevant to sentencing decisions and to determine the impact of
such facts on federal sentences.” Booker, 543 U.S. at 241-42.
In so holding, the Court referred to the decision in Mistretta, 488
U.S. 361, 377 (1989), where it rejected a challenge to the
delegation of that authority. The Booker opinion construed
Mistretta as “premised on an understanding that the
Commission, rather than performing adjudicatory functions,
instead makes political and substantive decisions.” Booker, 543
U.S. at 242. The Booker opinion stated that in Mistretta it noted
that “the promulgation of the guidelines was much like other
activities in the Judicial Branch, such as the creation of the
Federal Rules of Evidence, all of which are non-adjudicatory
activities.” Id. Thus, the delegation to the Commission did not
encompass a definition of the elements of a criminal offense and
adjudicatory functions. The standard of proof, of course, is an
adjudicatory function, not delegated to the Commission.
Booker, 543 U.S. at 243 (quoting Mistretta).

                                79
        The quotation included in the majority’s opinion which
it believes supports its standard of proof is from the
Commentary to Guideline § 6A1.3, a Policy Statement dealing
with Resolution of Disputed Factors. One would ordinarily
assume that if the issue of standard of proof for disputed factors
appeared somewhere in the Guidelines, this would be the
appropriate place. But there is nothing in the text of that
Guideline/Policy Statement that addresses the standard of proof.
Nor, if read carefully, does the sentence of the statement in the
Commentary quoted by the majority address the issue of the
required standard of proof of a criminal offense. Instead it is
directed only to the issue of “resolving disputes regarding
application of the guidelines to the facts of a case.” The entirety
of the sentence at issue is repeated in the margin.41 Because
there is no Guideline applicable to the standard of proof of a
criminal offense, there is no “dispute regarding application of
[any] guideline[]” and the sentence on which the majority relies
is inapplicable.
       What is of particular interest and relevance is the
discussion of this sentence in the separate opinion of Justice
Thomas in Booker, where he states,
       The commentary to § 6A1.3 states that the
       Commission believes that use of a preponderance


       41
        “The Commission believes that use of a preponderance
of the evidence standard is appropriate to meet due process
requirements and policy concerns in resolving disputes
regarding application of the guidelines to the facts of a case.”
U.S. Sentencing Guidelines Manual § 6A1.3 cmt. (2006).

                                80
       of the evidence standard is appropriate . . . . The
       Court's holding today corrects this mistaken
       belief. The Fifth Amendment requires proof
       beyond a reasonable doubt, not by a
       preponderance of the evidence, of any fact that
       increases the sentence beyond what could have
       been lawfully imposed on the basis of facts found
       by the jury or admitted by the defendant.
543 U.S. at 319 n.6 (Thomas, J., dissenting in part) (emphasis
added). Cf. United States v. Pimental, 367 F. Supp. 2d 143, 153
(D. Mass. 2005) (“Certain facts . . . . assume inordinate
importance in the sentencing outcome. So long as they do, they
should be tested by our highest standard of proof.”).
        Justice Thomas is not the only one to have commented
critically on the statement in the Guideline commentary. See,
e.g., Note, Sentencing After Booker: The Impact of Appellate
Review on Defendants’ Rights, 24 Yale L. & Pol’y Rev. 173,
198-99 (2006) (“Although the Supreme Court has countenanced
the preponderance standard at sentencing, the Court has never
required the application of that standard. . . . Moreover, this
Guideline has not been officially re-examined by Congress since
Apprendi, Blakely, and Booker were decided. Thus, one should
not rely on this commentary for the strong proposition that a
heightened standard of proof is impermissible.”); see also
Douglas A. Berman, Tweaking Booker: Advisory Guidelines in
the Federal System, 43 Hous. L. Rev. 341, 387 (2006)
(“Notably, the Sentencing Reform Act does not speak to the
burden of proof issue at all. And though the commentary to
Guidelines’ § 6A1.3 states that the Commission ‘believes that
use of a preponderance of the evidence standard is appropriate

                               81
. . . [’] in resolving factual disputes, this provision is overdue for
reexamination in the wake of the Supreme Court's decisions in
Apprendi, Blakely, and Booker.”).
       I leave Booker, the heart of the majority’s decision, for
later discussion and turn to the majority’s third proffered
authority for its adoption of the preponderance-of-the- evidence
standard for proof of an offense, i.e., United States v. Mobley,
956 F.2d 450 (3d Cir. 1992). The issue in that case was whether
the Government, which sought to enhance defendant’s sentence
following conviction of possession of a firearm by a convicted
felon because the gun was stolen, must show defendant knew
the gun was stolen to enhance his sentence. In a two to one
decision, with Judge Mansmann dissenting, we held that the
then-applicable Guideline, § 2K2.1(b)(2) (authorizing
enhancement based on fact that the gun was stolen), did not
have a scienter element.          The majority rejected Judge
Mansmann’s position that a sentencing enhancement under the
Guidelines may not be substituted for a criminal conviction
consistent with due process.
        The facts in Mobley are, on their face, distinguishable
from Grier’s situation because the nexus in Mobley between
possession of the weapon and its being a stolen weapon clearly
satisfied the relevant Guideline prerequisite that the stolen gun
was in connection with the offense of conviction. But I need not
rely on that distinction. Mobley was a panel decision. It is our
tradition that a panel decision does not bind the court sitting en
banc. As we stated in an earlier en banc decision, “Because we
are now en banc, neither the language nor the holdings of those
panel decisions bind us here.” Orson, Inc. v. Miramax Film
Corp., 189 F.3d 377, 380 (3d Cir. 1999) (en banc); see also

                                 82
Mariana v. Fisher, 338 F.3d 189, 201 (3d Cir. 2003); Halderman
v. Pennhurst State School & Hospital, 673 F.2d 628, 641 n.1 (3d
Cir. 1982) (“To be sure, this court, sitting en banc, [may]
overrule . . . panel decisions.”) (en banc) (Garth, J., concurring
in part and dissenting in part). It follows that Mobley, one of the
majority’s three proffered authorities, cannot serve as precedent
for the majority’s adoption of the preponderance-of-the-
evidence standard.
                                II.
       I turn then to Booker, on which the majority places its
principal reliance for its holding that “[o]nce a jury has found a
defendant guilty of each element of an offense beyond a
reasonable doubt, he has been constitutionally deprived of his
liberty and may be sentenced up to the maximum sentence
authorized under the United States Code without additional
findings beyond a reasonable doubt.” Maj. op. at 10. Neither of
the Booker opinions ever says or suggests such a proposition,
and I believe it is seriously flawed, certainly as applied in this
case.
       Although Grier pled guilty to possession of a firearm by
a convicted felon (the guilty plea equivalent to a jury finding),
no jury found him guilty of aggravated assault, a different and
independent offense. Grier’s guilty plea to one offense (for
which he would have been entitled to the beyond-a-reasonable
doubt standard) cannot justify diminution of the applicable
standard of proof applied by a judge for a separate offense.
      I know of no authority that contests that the beyond-a-
reasonable doubt standard is as equally applicable to a judge
who sits as the trier of fact as to a jury. In In re Winship, the

                                83
Court held that a provision of the New York Family Court Act
that authorized a judge to determine by a preponderance of the
evidence that a juvenile was delinquent – that is, guilty of a
crime – violated the juvenile’s due process rights. In reversing
the decision of the New York Court of Appeals that had
sustained the constitutionality of the Act, Justice Brennan noted
that “the requirement of proof beyond a reasonable doubt has
this vital role in our criminal procedure for cogent reasons. The
accused during a criminal prosecution has at stake interests of
immense importance, both because of the possibility that he may
lose his liberty upon conviction and because of the certainty that
he would be stigmatized by the conviction.” 397 U.S. at 363.
        Can the majority really be suggesting that the Due
Process Clause, with its requirement of proof beyond a
reasonable doubt, is never applicable to any sentencing issue?
In Jones v. United States, 526 U.S. 227 (1999), the Court
vacated a sentence imposed upon a criminal defendant who was
found guilty of violating the federal carjacking statute, 18
U.S.C. § 2119. Section 2119 makes carjacking a crime, and
then in three subsections sets forth what the Court held are three
distinct offenses with three maximum penalties. See id. at 229.
Subsection 1 provides that the penalty for carjacking is a fine or
imprisonment of not more than 15 years or both; Subsection 2
provides that if serious bodily injury results, the penalty is a fine
or imprisonment of not more than 25 years or both; Subsection
3 provides that if death results, the penalty is a fine or
imprisonment for any number of years up to life or both.
        Serious bodily injury was not pled in the Jones indictment
nor did the district court instruct on that issue. Nonetheless, the
district court sentenced Jones to 25 years on the carjacking,

                                 84
finding by a preponderance of the evidence that there was
serious bodily injury. The Jones factual scenario does not differ
markedly from that presented in this case.
       When the Jones case reached the Supreme Court, the
Court rejected the Government’s argument that the fact of
serious bodily harm was merely a sentencing factor and instead
construed § 2119 “as establishing three separate offenses by the
specification of distinct elements, each of which must be
charged by indictment, proven beyond a reasonable doubt, and
submitted to a jury for its verdict.” Id. at 252. The Court found
that permitting the judge to make findings regarding serious
bodily harm to the victim by a preponderance of the evidence
and thereby increasing the sentencing range for that crime would
present a serious due process issue. See id. at 243.
       The majority states that Jones was a statutory
interpretation case, not a statement of constitutional doctrine,
and suggests that the holding in Jones has no relevance to the
issue before us. That reading of Jones is belied by the rationale
for the opinion given by the Supreme Court itself which
discussed at length the “‘grave and doubtful constitutional
questions’” id. at 239 (quoting U.S. ex rel. Attorney Gen. v. Del.
& Hudson Co., 213 U.S. 366, 408 (1909)),42 that would arise


       42
         The “constitutional doubt rule” referred to in Jones
instructs: “the rule, repeatedly affirmed, that ‘where a statute is
susceptible of two constructions, by one of which grave and
doubtful constitutional questions arise and by the other of which
such questions are avoided, our duty is to adopt the latter.’”
Jones, 526 U.S. at 239 (quoting Del. & Hudson Co., 213 U.S. at

                                85
were it to interpret the statute to treat the finding of “serious
bodily harm” as a sentencing factor to be found by the judge
rather than as an element of the offense that “must be charged
in the indictment, submitted to a jury, and proven by the
Government beyond a reasonable doubt.” Jones, 526 U.S. at
232.
        After citing In re Winship, referred to above, the Jones
Court reviewed the holdings in Mullaney v. Wilbur, 421 U.S.
684 (1975), Patterson v. New York, 432 U.S. 197 (1977), and
McMillan v. Pennsylvania, 477 U.S. 79 (1986), focusing on the
constitutional issues they presented. Jones, 526 U.S. at 240-42.
In a footnote, the Court restated the principles that underlay its
view that the carjacking statute, as construed by the
Government, might violate the Constitution. It stated, inter alia:
“The constitutional safeguards that figure in our analysis
concern not the identity of the elements defining criminal
liability but only the required procedures for finding the facts
that determine the maximum permissible punishment; these are
the safeguards going to the formality of notice, the identity of
the factfinder, and the burden of proof.” Id. at 243 n.6
(emphasis added).
        The majority’s description of the discussion of
constitutional rights in Jones as “in the subsidiary context of the
interpretative canon of avoidance,” Maj. op. at 21, ignores the
fact that the Court itself in Jones gave as the raison d’être of its
statutory interpretation “the serious constitutional questions,” id.
at 251, that would arise under the Government’s interpretation


408).

                                86
of the statutory language. In contrast to the majority’s relegation
of Jones to mere statutory interpretation and “not a statement of
constitutional doctrine” regarding “the right to proof beyond a
reasonable doubt,” Maj. op. at 21, I note that this very language
in Jones identifying “the constitutional safeguards,” specifically
including “the burden of proof” which led the Jones Court to its
statutory construction, is quoted at length in the Booker
constitutional opinion. Booker, 543 U.S. at 242. As the Court
stated in Booker, a contrary holding in Jones “would have
reduced the jury’s role ‘to the relative importance of low-level
gatekeeping.’” Booker, 543 U.S. at 230 (quoting Jones, 526 U.S.
at 244).43
        Jones, with its affirmation of the principle that due
process protections are required for offense-defining elements,
was followed by Apprendi, a decision that even the majority
states governs the constitutional issue before us. Maj. op. at 23.
It states:
       This is a constitutional case, governed by the rule
       of Apprendi: the rights to a jury trial and to proof
       beyond a reasonable doubt attach to those facts
       that increase the statutory maximum punishment
       to which the defendant is exposed. 530 U.S. at
       490.


       43
         Any suggestion by the majority and the concurrence that
Jones is no longer viable or relevant following Booker is belied
by the prominent references to its holding in the opinion in
Shepard v. United States, 544 U.S. 13, 24-26 (2005). I will
discuss Shepard in more detail infra.

                                87
Maj. op. at 23.
       In Apprendi, the Court distinguished between sentencing
factors which a district court may find by a preponderance of the
evidence when exercising its discretion to sentence within a
given range, and those sentencing determinations for which due
process demands a greater degree of procedural protection. The
Court distinguished the determinations of sentencing factors,
which it characterized as “factors relating both to the offense
and offender,” Apprendi, 530 U.S. at 481, from the
determinations of what are usually characterized as elements of
the offense, to which greater due process protections apply. As
the Court stated:
       If a defendant faces punishment beyond that
       provided by statute when an offense is committed
       under certain circumstances but not others, it is
       obvious that both the loss of liberty and the
       stigma attaching to the offense are heightened; it
       necessarily follows that the defendant should not
       – at the moment the State is put to proof of those
       circumstances – be deprived of protections that
       have, until that point, unquestionably attached.
Id. at 484.
        The Court continued, “[s]ince Winship, we have made
clear beyond peradventure that Winship’s due process and
associated jury protections extend, to some degree, ‘to
determinations that [go] not to a defendant’s guilt or innocence,
but simply to the length of his sentence.’” Id. (quoting United
States v. Almendarez-Torres, 523 U.S. 224, 251 (1998) (Scalia,
J., dissenting)). The Court then explained which facts are

                               88
entitled to the due process protections. In writing for the
Apprendi majority on the constitutional issue, Justice Stevens
quoted from his concurring opinion in Jones, where he wrote,
“‘[I]t is unconstitutional for a legislature to remove from the
jury the assessment of facts that increase the prescribed range of
penalties to which a criminal defendant is exposed. It is equally
clear that such facts must be established by proof beyond a
reasonable doubt.’” (quoting Jones, 526 U.S. at 252-53 (Stevens,
J., concurring)).
        The holding of Jones that due process protections are
required for offense-defining elements, as distinguished from
sentencing factors, was the precedent on which the Supreme
Court’s decision in Apprendi was based. Apprendi pled guilty
in state court to two counts of possession of a firearm for an
unlawful purpose, and one count of unlawful possession of an
antipersonnel bomb. Apprendi, 530 U.S. at 469-70. The State
reserved the right to seek a higher enhanced sentence on the
ground that one count of firearms possession was committed
with a biased purpose in violation of N.J. Stat. § 2C:44-3, which
was punishable by imprisonment for between ten and twenty
years. Id. at 470. After a hearing, the state trial judge found by
a preponderance of the evidence that Apprendi’s crime was
motivated by racial bias in violation of the state statute and
enhanced Apprendi’s sentence accordingly. Id. at 471. The
finding doubled the maximum range within which Apprendi
could be sentenced.
      Although there was a “full evidentiary hearing” in the
New Jersey court on whether Apprendi acted with a biased
purpose, that issue was not presented to the jury. The Supreme
Court thus stated, “The question whether Apprendi had a

                               89
constitutional right to have a jury find such bias on the basis of
proof beyond a reasonable doubt is starkly presented.” Id. at
475-76. The Court quoted from its earlier opinion in United
States v. Gaudin, 515 U.S. 506 (1995), affirming that due
process requires, inter alia, that a criminal defendant be afforded
“‘a jury determination that [he] is guilty of every element of the
crime with which he is charged, beyond a reasonable doubt.’”
Apprendi, 530 U.S. at 477 (quoting Gaudin, 515 U.S. at 510).
The Court then noted that historically “[j]ust as the circumstance
of the crime and the intent of the defendant at the time of
commission were often essential elements to be alleged in the
indictment, so too were the circumstances mandating a
particular punishment.” Apprendi, 530 U.S. at 480.
        The Apprendi Court held that the New Jersey statutory
scheme, allowing a judge to make a finding by a preponderance
of the evidence that the defendant’s “purpose” for unlawfully
possessing the weapon was to intimidate his victim on the basis
of race, was unconstitutional. Apprendi, 530 U.S. at 491-92.
The Court rejected New Jersey’s argument that the required
“motive” finding was simply a “traditional” sentencing factor.
Id. at 493-94. It continued, “[t]he degree of criminal culpability
the legislature chooses to associate with particular, factually
distinct conduct has significant implications both for a
defendant’s very liberty, and for the heightened stigma
associated with an offense the legislature has selected as worthy
of greater punishment.” Id. at 495. Distinguishing Almendarez-
Torres (which held evidence of prior convictions admissible
without further proof), the Court stated:
       there is a vast difference between accepting the
       validity of a prior judgment of conviction entered

                                90
       in a proceeding in which the defendant had the
       right to a jury trial and the right to require the
       prosecutor to prove guilt beyond a reasonable
       doubt, and allowing the judge to find the required
       fact under a lesser standard of proof.
Id. at 496 (emphasis added).44
       That statement alone is dispositive of this appeal. Grier’s
sentence was enhanced based on the District Judge’s finding
that Grier committed an aggravated assault despite the fact that
no jury found that he had done so and no factfinder, not even the
judge, so found beyond a reasonable doubt. The majority’s only
response to the reasoning in Apprendi set forth above, is “[l]ike
the right to a jury trial, the right to proof beyond a reasonable
doubt attaches only when the facts at issue have the effect of
increasing the maximum punishment to which the defendant is
exposed. Apprendi, 530 U.S. at 489-94. The advisory
Guidelines do not have this effect.” Maj. op. at 18-19. This, I
respectfully state, is a non sequitur. If the decisions in Shepard
v. United States, 544 U.S. 13 (2005), discussed infra, and
Apprendi were not enough to dissuade the majority from what
I believe is its mistaken path, then the Supreme Court’s most
recent opinion on the issue in Cunningham could not have been
more clear. Under the California determinative sentencing law
(“DSL”) a defendant’s sentence was determined by the tier in


       44
        The finding by a preponderance of the evidence that
Grier had committed an aggravated assault is in sharp contrast
to Almendarez-Torres, where the underlying convictions
followed findings made beyond a reasonable doubt.

                                 91
which s/he fell. A defendant would fall within the upper tier
only when the trial court determined that there were aggravating
circumstances. The Supreme Court held that the middle tier, in
which the defendant’s sentence would fall in the absence of such
aggravating circumstances, was to be regarded as “the relevant
statutory maximum.” Cunningham, 2007 WL 135687, at *11.
Once again, the Court reiterated the applicable principles:
“Because circumstances in aggravation are found by the judge
and not the jury, and need only be established by a
preponderance of the evidence, not beyond a reasonable doubt,
. . . the DSL violates Apprendi’s bright-line rule[.]” Id.
        Apprendi, I emphasize, was not a statutory interpretation
but a constitutional rule. The Court in Cunningham relied on
Apprendi. The majority’s attempt to distinguish Cunningham in
its footnote: “The challenge before us is a Fifth Amendment
challenge to an advisory sentencing scheme rather than a Sixth
Amendment challenge to a mandatory sentencing scheme,” Maj.
op. at 18 n.6, is nothing short of bizarre. Does the majority
really believe that the Fourteenth Amendment’s incorporation of
the Sixth Amendment, which was the basis for the Supreme
Court’s constitutional opinion in Apprendi, inter alia, does not
apply equally to the Fifth Amendment?
       The majority’s interpretation of Apprendi leads it to
establish the rule that “[o]nce a jury has found a defendant guilty
of each element of an offense beyond a reasonable doubt, he has
been constitutionally deprived of his liberty and may be
sentenced up to the maximum sentence authorized under the
United States Code without additional findings beyond a
reasonable doubt.” Maj. op. at 10.


                                92
        The charge to which Grier pled guilty has a statutory
maximum imprisonment term of 120 months, 18 U.S.C. §
924(a)(2), and no mandatory minimum. In the Presentence
Report (PSR), the Probation Officer, after determining that Grier
“used or possessed the firearm in connection with another felony
offense (aggravated assault),” PSR, para. 14, and therefore was
subject to a four-level enhancement pursuant to then-applicable
U.S.S.G. § 2K2.1(b)(5), calculated that the appropriate
Guidelines range for Grier’s sentence (with a total offense level
of 27 and a category V criminal history) was 120-150 months.
The PSR also noted that without that four-level enhancement the
appropriate sentencing range would be 84 to 105 months in
prison.
       At the sentencing hearing the District Court adopted the
PSR, expressly using the preponderance-of-the-evidence
standard in finding that Grier committed the “other felony
offense,” i.e. “aggravated assault.”        The Court made a
downward departure under U.S.S.G. § 5K2.10 because the
victim was partially responsible for the assault that was the basis
for the enhancement, and sentenced Grier to 100 months in
prison, with three years of supervised release.
        According to the majority’s analysis, because Grier was
subject to a statutory maximum of 120 months and the District
Court sentenced him to 100 months imprisonment, Grier’s
constitutional due process rights were not violated. However,
the majority overlooks the fact that the District Court could have
sentenced Grier at the low range of the advisory Guideline, i.e.
to 84 months imprisonment. It is thus possible, and perhaps
likely, that had the District Court recognized that the aggravated
assault had to be proven beyond a reasonable doubt, it would

                                93
have sentenced Grier to no more than 84 months imprisonment.
It is evident that the PSR calculation, adopted by the sentencing
judge, increased the sentence to which Grier was exposed.
       In Apprendi the Court stated:
       The differential in sentence between what
       Apprendi would have received without the
       finding of biased purpose and what he could
       receive with it is not, it is true, as extreme as the
       difference between a small fine and mandatory
       life imprisonment. Mullaney, 421 U.S., at 700.
       But it can hardly be said that the potential
       doubling of one’s sentence – from 10 years to 20
       – has no more than a nominal effect. Both in
       terms of absolute years behind bars, and because
       of the more severe stigma attached, the
       differential here is unquestionably of
       constitutional significance. When a judge’s
       finding based on a mere preponderance of the
       evidence authorizes an increase in the maximum
       punishment, it is appropriately characterized as “a
       tail which wags the dog of the substantive
       offense.” McMillan, 477 U.S., at 88.
530 U.S. at 495.
      In this case, the District Court’s adoption of the
preponderance-of-the-evidence standard, that the majority
approves, and which exposed Grier to a year-and-a-half higher
sentence than he may have otherwise received, had more than a
“nominal” effect.


                                94
        Moreover, the majority gives little or no effect to the
Supreme Court’s decision in Blakely v. Washington, 542 U.S.
296 (2004), where the Court applied its earlier holding in
Apprendi to a state’s indeterminate sentencing regime and held
that any fact that increased the sentence must also be submitted
to a jury, even though this sentence would fall within the
absolute maximum allowed by the statute. 542 U.S. at 303-04.
Because Blakely held that “the ‘statutory maximum’ for
Apprendi purposes is the maximum sentence a judge may
impose solely on the basis of the facts reflected in the jury
verdict or admitted by the defendant,” 542 U.S. at 303
(emphasis in original), any enhancement based on additional
facts, even if the ultimate sentence is within the statutory range,
as in Grier’s case, violates both Apprendi and Blakely. Once
again the Cunningham opinion speaks definitively to this issue.
The Court reprised the facts in Blakely. Blakely had been
convicted of second-degree kidnapping with a firearm, a class
B felony under Washington law. Although Blakely was
sentenced to 90 months’ imprisonment, well within the overall
statutory maximum of ten years for a class B felony, the Court
held that the Washington State sentencing scheme violated the
Sixth Amendment because the trial court could exceed the
“standard range” of 49 to 53 months for “substantial and
compelling reasons justifying an exceptional sentence.”
Cunningham, 2007 WL 135687, at *8 (internal citation and
quotation omitted). As explained in Cunningham, “[t]he judge
could not have sentenced Blakely above the standard range
without finding the additional fact of deliberate cruelty.
Consequently, that fact was subject to the Sixth Amendment’s
jury-trial guarantee. [Blakely,] 542 U.S. at 304-314. It did not
matter, we explained, that Blakely’s sentence, though outside

                                95
the standard range, was within the 10-year maximum for Class
B felonies[.]” Id. at *8 (emphasis added). Thus the fact that the
majority deems dispositive in this case, that Grier’s sentence did
not exceed the statutory maximum, is effectively repudiated by
Cunningham.
       Throughout its opinion the majority focuses on the
language in the Booker remedial opinion, not on the Booker
constitutional opinion. The Booker remedial opinion, authored
by Justice Breyer, is addressed solely to the manner in which the
requirements of the Booker constitutional opinion can be met.
As the majority recognizes, the Booker Court’s holding is
limited to an analysis of the defendant’s Sixth Amendment right
to a jury trial. Booker offered no discussion of the Fifth
Amendment, and to the extent that making the Guidelines
advisory obviated the constitutional concerns raised in that case,
it must be noted that there is a clear distinction to be drawn
between Fifth and Sixth Amendment guarantees; the fact that
rendering the Guidelines advisory remedied Sixth Amendment
violations has little bearing on Fifth Amendment considerations.
The issue before this court is whether, under the now-advisory
Guidelines, the enhancement based on a judicial finding of fact
(the commission of a separate felony) by the preponderance of
evidence violated Grier’s due process rights.
        The majority opinion can be read to hold that as long as
the sentence imposed is reasonable and within the statutory
maximum, there is no constitutional issue. But nothing in the
Booker remedial opinion, which adopts reasonableness as the
standard for appellate review of the sentence imposed by a
district court, suggests that “reasonableness” can be substituted
for the constitutional requirement of a finding beyond a

                               96
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, 2007 WL 135687, at *14. 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.
       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 24. Once again the majority ignores the
holding in Apprendi where the Supreme Court’s decision was



       45
         Many of the cases cited by the majority concern
findings relating to sentencing facts, which, as Booker held,
have historically been left to the sentencing judge’s discretion
and which Apprendi held can be established by a preponderance
of the evidence. See, e.g., United States v. Okai, 454 F.3d 848,
851-52 (8th Cir. 2006); United States v. Dare, 425 F.3d 634, 642
(9th Cir. 2005); Cirilo-Munoz v. United States, 404 F.3d 527,
532-33 (1st Cir. 2005).

                              97
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.
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 24, simply wipes away the entire holding of Apprendi.
        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.
       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


       46
         Appellant and the amici have included in their briefs
various broad challenges to the Sentencing Guidelines and cases
interpreting them that go far beyond the issue presented in this
case. I have not considered nor discussed them because they
may deflect attention from the important, albeit narrow,
constitutional issue before us.
       47
          Grier also contends that the District Court erred by
failing to articulate its consideration of the factors set forth in 18

                                 98
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.
        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 (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 (1990), the Court had



U.S.C. § 3553(a) in determining Grier’s sentence, making the
sentence unreasonable.       Because I distinguish between
sentencing factors, the subject of § 3553, which are not at issue
here, and offense- defining factors which are the subject of this
dissent, I need not discuss Grier’s contention.

                                99
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
(internal citation and quotation omitted). The Supreme Court
reversed.
         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. 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. 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



                               100
certainty of the record. The opinion stresses throughout the
need for certainty as to the basis for the predicate conviction.
        The Court stated that because there was no plea
agreement or recorded colloquy in which Shepard admitted the
fact at issue,
       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.
Id. at 25.
        If the record in Shepard, where the defendant had pled
guilty to the offense which the Government sought to use as an
enhancement, was an insufficient basis on which to hinge the
predicate crime, how can the majority possibly base Grier’s
enhancement on commision of an offense (aggravated assault)
for which he was never charged, which he never admitted, and
on which he was never tried? Surely, the aggravated assault that
was the basis of Grier’s sentencing enhancement is the
equivalent of the predicate crimes under the ACCA with which
Shepard was concerned. And, Shepard also confirms the
significance of my focus on the standard of proof of the separate
crime, a focus that is the subject of the majority’s scorn.

                              101
        There is no basis under Pennsylvania law to levy on Grier
a charge of aggravated assault and no basis in the evidence to
make a finding that Grier committed that offense. The evidence
at the sentencing hearing consisted only of the testimony from
Juan Navarro, the brother of Grier’s girlfriend, with whom Grier
engaged in the altercation that constituted the basis for the
District Court’s finding of aggravated assault. Navarro testified
that he [Navarro] “swung first,” i.e., that he was the first
aggressor in the altercation. App. at 51; Tr. at 10, l. 1. He
testified that he and Grier then “started rolling around on the
ground.” App. at 56. Navarro testified that the gun initially
went off while they were struggling on the ground:
       We started fighting. And the people surrounding
       us was [sic] saying that he had a gun and all that,
       and they tried to get the gun from him and all.
       And then a shot fired. Then we just separated.
       And then after that, he just pointed the gun at me,
       and then it went – I started – I kept going after
       him. And then people was just holding me back,
       and then he went from there where he was gonna
       go, and then stopped. The fight just stopped right
       there.
Id. at 51; Tr. at 10, 1. 13.
        Navarro further testified on cross-examination that he did
not know how the gun had gotten out of Grier’s pocket: “I don’t
know if the gun fell out 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.” App. at 57; Tr.
at 16, l. 3.

                               102
        Navarro testified that after the two had separated, Grier
pointed the gun at him, but Navarro “was trying to go back at
him” when onlookers held him back. At that point, Grier “shot
in the air.” App. at 58; Tr. at 17, l. 18. After that, Navarro
testified that they “both walked away. He went his way and I
went my way.” App. at 59; Tr. at 18, l. 13.
        Under Pennsylvania law, a person commits an aggravated
assault when, inter alia, s/he “attempts to cause or intentionally
or knowingly causes bodily injury to another with a deadly
weapon.” 18 Pa. Cons. Stat. § 2702(a)(4). In this case, there is
no evidence that Grier had the requisite intention and the
evidence does not show that he ever fired the gun at Navarro.
The first time the gun went off, Grier and Navarro were engaged
in a struggle on the ground, while bystanders were also trying to
wrestle the gun away from Grier. Therefore, there was no
evidence to support a charge of aggravated assault.
       In contrast, “[s]imple assault by physical menace” is
defined under Pennsylvania law as an “attempt by physical
menace to put another in fear of imminent serious bodily
injury,” 18 Pa. Cons. Stat. § 2701(a)(3), and includes pointing
a gun at someone without firing it. The District Court
interrupted the District Attorney’s statement that Grier pointed
the firearm at Navarro by saying, “I don’t think there’s any
testimony he pointed it at him.” App. at 68. Even Navarro’s
testimony that Grier pointed the gun at him never suggested that
Grier attempted to put him in fear of imminent serious bodily
injury and he stated immediately thereafter that Grier fired the
gun in the air in order to end the fight. He obviously so
understood it, and the District Court did not state otherwise.


                               103
        At most, the facts on the record support a charge of
simple assault by mutual consent, which, under Pennsylvania
law, is only punishable by up to one year in prison. See 18 Pa.
Cons. Stat. §§ 2701(b)(1), 1104(3). Simple assault by mutual
consent cannot support application of a four-level enhancement
under former U.S.S.G. § 2K2.1(b)(5) 48 because it does not meet
the requirement for a “felony offense,” which is defined as “any
offense (federal, state, or local) punishable by imprisonment for
a term exceeding one year, whether or not a criminal charge was
brought, or conviction obtained.” U.S.S.G. § 2K2.1 cmt. 4
(2005).
        The Pennsylvania statute defines aggravated assault in
the alternative – the defendant must have attempted to or
intentionally caused bodily injury with a deadly weapon. There
is no suggestion that Grier actually injured Navarro with the
gun. Therefore, the District Court’s conclusion that Grier
committed an aggravated assault by a preponderance of the
evidence must have been based on the finding that it was more
likely than not that Grier attempted to cause bodily injury to
Navarro with the gun. See 18 Pa. Cons. Stat. § 2702(a)(4). Yet
the majority chooses to ignore the copious evidence that
Navarro was the aggressor and that Grier was acting only in
self-defense. Navarro’s testimony confirms that when Grier
stepped away from Navarro and fired a shot in the air he was
seeking to end the fight. App. at 59. Firing in the air is not a



       48
        In the November 2006 edition of the Guidelines, this
provision now appears at § 2K2.1(b)(6), with an analogous and
corresponding application note at 14(C).

                              104
mysterious gesture as the majority chooses to portray it, but can
fairly be described as a universally understood gesture of detente
or warning. Navarro so understood it. In fact, state charges
filed against Grier after the incident were dismissed.
       The majority states:
       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.
See Maj. op. at 30. The District Court never found Grier “fired
a shot in an attempt to harm or kill Navarro.” That is a figment
of the majority’s imagination.
       By stating that it is “arguable” that the record shows that
the gun accidentally dropped from Grier’s pocket, the majority
in effect concedes that the District Court erred in finding, even
by a preponderance of the evidence, that Grier committed an
aggravated assault. The only basis for the sentence imposed by
the District Court was its statement that it “adopts the pre-
sentence report.” App. at 80. I submit that after Shepard, a
presentence report without more cannot be the basis for a


                               105
finding of an offense that is the predicate for a sentence
enhancement.
       The District Court itself acknowledged Navarro’s
responsibility for the altercation by departing downward two
levels due to the victim’s partial responsibility under U.S.S.G.
§ 5K2.10. If the District Court believed that Navarro was
responsible for the altercation, it should have given closer
consideration to Grier’s claim of self-defense, which is a
complete defense to aggravated assault under Pennsylvania law,
and which, as Grier argued at sentencing, could also reduce the
predicate offense to simple assault by mutual consent. See 18
Pa. Cons. Stat. § 2701(b)(1). The majority ignores the fact that
under Pennsylvania law simply pointing a gun at someone
without firing it is not an aggravated assault, but a simple assault
by physical menace, to which the mutual consent exception
applies. See Commonwealth v. Matthews, 870 A.2d 924, 929
(Pa. Super. 2005); 18 Pa. Cons. Stat. § 2701(a)(3).
        The majority concludes that the District Court did not err
in finding that Grier had committed an aggravated assault based
on the barest evidence to support his charge in the record.
Although the majority actually adopts the clear error standard,
which requires us to reverse a District Court’s finding of fact as
clearly erroneous “‘when although there is evidence to support
it, [we] are left with the definite and firm conviction that a
mistake has been committed,’” Concrete Pipe & Prods. of Cal.,
Inc. v. Constr. Laborers Pension Trust for S. Cal., 508 U.S. 602,
622 (1993) (quoting United States v. U.S. Gypsum Co., 333
U.S. 364, 395 (1948)), the majority fails to apply this standard
to the facts on record.


                               106
       Its statement that “[t]he precise circumstances of the fight
are matters of reasonable speculation,” Maj. op. at 30, is
inconsistent with its affirmation of the District Court’s finding
that Grier committed an aggravated assault, even by its own
standard using a preponderance of the evidence. I would
remand to the District Court for resentencing without the four
point enhancement for commission of another offense.


McKEE, Circuit Judge, dissenting, with whom Judge Sloviter
joins.
        As Judge Ambro poignantly notes, Sean Michael Grier
“is in prison in part for a crime for which he was never indicted,
never tried, and never convicted.” Con. Op., supra, at 37
(Ambro, J. concurring). Nevertheless, he joins the result
reached by the majority because he concludes the Supreme
Court precedent he so ably discusses requires that result. It is
certainly true that we are bound by prior decisions of the
Supreme Court, even though they may now be in tension with
Apprendi and its progeny. See Con. Op.,supra, at 41 (citing
State Oil Co. v. Khan, 522 U.S. 3, 20 (1997)) (Ambro, J.
concurring). However, as I explain below, and as Judge Sloviter
so ably explains, Supreme Court precedent undermines the
majority’s analysis, it does not support it.
       I write separately to explain why I join Judge Sloviter in
dissent rather than join Judge Ambro’s thoughtful concurrence,
and to explain why I believe that the Fifth Amendment does not
allow a sentencing court to enhance a sentence pursuant to
U.S.S.G. § 2K2.1(b)(5) when the Government only establishes


                               107
that the defendant committed an uncharged felony by a
preponderance of the evidence.
                               I.
        In Apprendi v. New Jersey, 530 U.S. 466 (2000), the
Supreme Court stated, “any fact (other than a prior conviction)
that increases the maximum penalty for a crime must be charged
in an indictment, submitted to a jury, and proven beyond a
reasonable doubt.” Id. at 476 (citation omitted). The Court later
characterized this as a “bright-line rule.” See Blakely v.
Washington, 542 U.S. 296, 308 (2004).
       In Blakely, the Supreme Court rejected the state’s
contention that the rule of Apprendi was not violated because
the defendant’s sentence was less than the statutory maximum
allowed under the state’s criminal code. The Court defined
“statutory maximum” as follows:
       Our precedents make clear . . . that the “statutory
       maximum” for Apprendi purposes is the
       maximum sentence a judge may impose solely on
       the basis of facts reflected in the jury verdict or
       admitted by the defendant. In other words, the
       relevant “statutory maximum” is not the
       maximum sentence a judge may impose after
       finding additional facts, but the maximum he may
       impose without any additional finding. When a
       judge inflicts punishment that the jury’s verdict
       alone does not allow, the jury has not found all
       the facts which the law makes essential to the
       punishment and the judge exceeds his proper
       authority.

                              108
Blakely, 542 U.S. at 303 (citation omitted) (quotation omitted)
(emphasis in original). The Court’s pronouncement referred to
the Sixth Amendment because, as the majority notes, that was
the issue before the Court. However, constitutional guarantees
can not be neatly quarantined in the manner suggested by the
majority’s failure to recognize the Fifth Amendment
implications of Blakely. The majority’s sequestration of these
constitutional provisions improperly restricts the operation of
the Fifth Amendment’s Due Process Clause and contravenes the
Court’s analysis in Jones v. United States, 526 U.S. 227 (1999).
There, the Court stated, “under the Due Process Clause of the
Fifth Amendment and the notice and jury trial guarantees of the
Sixth Amendment, any fact (other than prior conviction) that
increases the maximum penalty for a crime must be charged in
an indictment, submitted to a jury, and proven beyond a
reasonable doubt.” Id. at 243 n.6.49
       As my colleagues in the majority explain, Booker
modified the Sentencing Reform Act of 1984 (“SRA”), Pub. L.
No. 98-473, 98 Stat. 1837, 1987 (1984), by severing two
provisions: 18 U.S.C. §§ 3553(b)(1) (requiring courts to impose
a sentence within the applicable Guidelines range) and 3742(e)
(prescribing standards of review on appeal, including de novo



       49
         As Judge Sloviter explains, the majority ignores the
constitutional impact of Jones by dismissing it on the basis that
“Jones was a statutory interpretation case.” Maj. Op.,supra, at
21. Given Judge Sloviter’s rejoinder to the majority’s view of
Jones, I need not elaborate on why Jones is relevant to our
inquiry.

                              109
review of departures from the relevant Guidelines range).
United States v. Booker, 543 U.S. 220, 258-59 (2005).
“Excising” these sections morphed the previously mandatory
Guidelines into advisory Guidelines. Id. at 259. As the Booker
Court explained, “without . . . the provision that makes the
relevant sentencing rules mandatory and imposes binding
requirements on all sentencing judges [] the statute falls outside
the scope of Apprendi’s requirement.” Id. (internal quotations
omitted).
         Relying upon this judicially-spawned metamorphoses, the
majority holds that the Fifth Amendment requires only that a
jury find “each element of an offense beyond a reasonable
doubt,” and concludes that a defendant “may be sentenced up to
the maximum sentence authorized under the United States Code
without additional findings beyond a reasonable doubt.” Maj.
Op., supra, at 10. The resulting sentencing scheme harkens to
the pre-Guidelines regime where “district courts ha[d] discretion
to sentence anywhere within the ranges authorized by statute.”
Booker, 543 U.S. at 305 (Scalia, J. dissenting). Although the
current operation of the Guidelines “harkens back” to that era,
it is clear that Booker’s remedial opinion does not reintroduce
the pre-Guidelines sentencing regime. Rather, Booker makes
clear that even “[w]ithout the ‘mandatory’ provision, the [SRA]
. . . requires judges to take account of the Guidelines together
with other sentencing goals.” Id. at 259.
       The majority’s analysis assumes that scrutiny of the
operation of a particular Guideline in a given case is pointless
because the Guidelines no longer have “the force and effect of
laws[.]” Booker, 543 U.S. at 234. This case shows the error of
such an oversimplification of the operation of the Guidelines

                               110
after Booker. Given what happened to Grier, it should be
apparent that considerations of due process do not cease merely
because the Guidelines are deemed advisory. Although advisory
in fact, they remain at the center of the sentencing process, and
continue to have a predominant role in determining the sentence
that is imposed. See Booker, 543 U.S. at 259; see also United
States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006).
       We have, of course, recently held that a sentence post-
Booker does not withstand appellate review for reasonableness
merely because it is within the applicable Guideline range. See
United States v. Cooper, 437 F.3d 324, 329-30 (3d Cir. 2006).
Although our discussion in Cooper reinforces the advisory
nature of the Guidelines, it does not alter the fact that
application of a particular Guideline can increase the
defendant’s exposure based upon facts not found by a jury or
proven beyond a reasonable doubt. This is such a case.
                               A.
        My colleagues in the majority find solace in the fact that
the holding here “accords with the decisions of each of our sister
circuits that has addressed this issue.” Maj. Op., supra, at 20.
I am not nearly as comforted by that fact as they. As I have
noted elsewhere, “before Booker was decided, one could have
developed an even more impressive list of the courts that had
incorrectly concluded that Apprendi does not apply to the
federal sentencing guidelines.” United States v. Leahy, 438 F.3d
328, 345 (3d Cir. 2006) (McKee, J. dissenting).
       It is axiomatic that when the Sixth Amendment requires
fact finding by a jury, the Fifth Amendment requires proof
beyond a reasonable doubt. However, when a defendant

                               111
knowingly waives the Sixth Amendment right to a jury
trial—either by knowingly and voluntarily agreeing to a bench
trial or by pleading guilty—the Fifth Amendment guarantee is
not automatically waived for all purposes. Grier waived his
Sixth Amendment right to a jury trial when he pled guilty. This
fact, however, does not place him beyond the reach of the Fifth
Amendment’s protection against being punished for a crime
unless guilt is established beyond a reasonable doubt.
        As Judge Sloviter notes, one of the fundamental reasons
for a heightened standard of proof in criminal trials is “the
comparative . . . costs of erroneous factual determinations.” Dis.
Op., supra, at 76 (quoting In Re Winship, 397 U.S. 358, 369-70
(1970) (Harlan, J. concurring)). Due process concerns persist if
the sentence imposed includes punishment for an uncharged
crime that has only been established by a preponderance of
evidence during a guilty plea colloquy. Judge Sloviter reminds
us that the Supreme Court, in Ring v. Arizona, 536 U.S. 584,
602 (2002), proclaimed: “if 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.” Dis. Op., supra, at
78.
        My colleagues in the majority believe that “there is every
reason to believe that the Supreme Court intended that the
practices that have guided us and other courts in the twenty
years since the Guidelines were first promulgated would
continue to govern sentencing in the federal courts.” Maj. Op.,
supra, at 9. However, they either ignore or misconstrue those
traditional practices, and they ignore those practices that guided


                               112
the exercise of sentencing discretion even before the Guidelines
were enacted.
        No one would doubt that the sentencing process has
traditionally required sentencing judges to consider factors and
circumstances that are as numerous as they are varied. The
exercise of the broad discretion endemic to the sentencing
process demands that the judge know as much about the
offender, the offense, and the impact of the offense on the
community and victim as practical given the limitations inherent
in any judicial proceeding. Accordingly, no one would dispute
that it is essential for a sentencing judge to have “‘the fullest
information possible concerning the defendant’s life and
characteristics’” in deciding upon an appropriate sentence.
United States v. Watts, 519 U.S. 148,152 (1997) (quoting
Williams v. New York, 337 U.S. 241, 247 (1949)).
        We all appreciate that Booker returned to sentencing
judges much of the discretion that they had exercised before the
advent of the SRA and the Sentencing Guidelines. Booker, 543
U.S. at 264. Those Guidelines (like other guideline schemes
adopted in many states before and after the SRA), resulted from
legislative efforts to bring a degree of uniformity and
predictability to the sentencing process while eliminating many
of the troubling sentencing disparities that had so often been
criticized. Mistretta v. United States, 488 U.S. 361, 365 (1989)
(explaining that Congress intended with the SRA to eliminate
“[s]erious disparities in sentencing” and the “uncertainty as to
the time the offender would spend in prison.”).
      After Booker, the sentencing factors in 18 U.S.C. §
3553(a) control sentencing discretion, and the Guidelines are, in

                              113
theory, but one of those factors.50 However, that does not mean


       50
         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

                               114
that all of those factors are equal in practice. Grier’s sentence
illustrates how the Guidelines are now first among equals, and
how that primacy can, in limited situations, collide with the Fifth
Amendment’s guarantee of due process.
       In United States v. Gunter, 462 F.3d at 247, we set forth
the three-step process district courts must engage in when
imposing a sentence after Booker. The first step in that process
is that “[c]ourts must continue to calculate a defendant’s
Guidelines sentence precisely as they would have before
Booker.” Id. In order to calculate a defendant’s Guideline
range properly, the sentencing judge must—at the second
step—rule on motions for departures and state how any
departure “affects the Guidelines calculation.” Id. Finally, upon
reaching the third step, and only upon reaching the third step,
“[sentencing courts] are required to ‘exercise . . . discretion by
considering the [other] relevant [i.e., 18 U.S.C. § 3553(a)]
factors.’” Id. (quoting United States v. King, 454 F.3d 187, 194
(3d Cir. 2006)).
       The sentence derived from this three-step process must
be imposed “regardless [of] whether it varies from the sentence
calculated under the Guidelines.” Gunter, 462 F.3d at 247.
Nevertheless, the exercise of judicial discretion, which the
majority rests so much of its argument upon, is driven by the


      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).

                               115
initial Guidelines calculation at step one. That calculation is the
“strong force” that defines the starting point for all that follows.
In doing so, it necessarily impacts—and often defines—the
ending point. That starting point determines the sentence that is
imposed even after the sentencing court has exercised its new-
found discretion and factored in any upward or downward
departures based upon its Guideline calculations.51 The
Guidelines are thus the point of departure for any and all
adjustments based upon the “sentencing factors” incorporated
into § 3553(a).
       Here, Grier’s sentencing range at the first step was 84 to
105 months without enhancements. However, after hearing the
victim’s testimony, the sentencing court concluded that the



       51
            Specifically, the Court in Booker explained that judges
were to:
       consider the Guidelines sentencing range
       established for the applicable category of offense
       committed by the applicable category of
       defendant, the pertinent Sentencing Commission
       policy statements, the need to avoid unwarranted
       sentencing disparities, and the need to provide
       restitution to victims[,] . . . impose sentences that
       reflect the seriousness of the offense, promote
       respect for the law, provide just punishment,
       afford adequate deterrence, protect the public, and
       effectively provide the defendant with needed
       educational or vocational training and medical
       care. Booker, 543 U.S. 259-60.

                                 116
Government had established by a preponderance of the evidence
that Grier had committed an aggravated assault (as defined in
Pennsylvania by 18 Pa. Cons. Stat. Ann. § 2702(a)) during the
commission of the offense he was pleading guilty to.
Accordingly, the sentencing court applied a four-level
enhancement as required under U.S.S.G. § 2K2.1(b)(5).
       The majority’s failure to appreciate the operation of
2K2.1(b)(5) in this context turns a blind eye to the inherent
tension between the advisory nature of the Guidelines on the one
hand, and their real-world application on the other. The
Guideline calculation (required as the first step in the three-step
process outlined in Gunter) will often have a far greater impact
on the ultimate sentence a defendant receives than either of the
other two steps of the sentencing process; perhaps even more
than the other two steps combined.52 Therefore, the following
should come as no surprise:
       The majority of federal cases continue to be
       sentenced in conformance with the [Guidelines].


       52
         These concerns are in no way intended to undermine
Booker or Gunter. Rather, my observations are merely intended
to explain how the application of the Guidelines can result in
punishment for an uncharged crime without the constitutionally
required level of certainty when the Guidelines include an
enhancement such as the one at issue here. The problem can be
easily resolved within the Booker/Gunter framework by
requiring any such crime to be established beyond a reasonable
doubt as the court considered doing during the sentencing
hearing.

                               117
       National data show that when within-range
       sentences and government-sponsored, below-
       range sentences are combined, the rate of
       sentencing in conformance with the sentencing
       guidelines is 85.9%. This conformance rate
       remained stable throughout the year that followed
       Booker.
U.S. Sentencing Comm’n, Report on the Impact of United States
v. Booker On Federal Sentencing, 18 Fed. Sent. R. 190, 192
(2006).53




       53
          Clearly, it would be premature to lean too heavily on
these numbers from the Sentencing Commission. It is certainly
possible that sentences will begin to diverge from Guideline
ranges as judges become more comfortable with exercising their
discretion based upon their assessment of the effect of the other
sentencing factors in § 3553(a). Nevertheless, we can not
lightly dismiss these statistics as we consider the post-Booker
operation of the Guidelines.
        The majority notes that the Guidelines merely “inform
the district court’s discretion without limiting its authority.” My
colleagues conclude that the Guidelines “therefore do not
constitute ‘elements’ of a ‘crime’ under the rationale of
Apprendi and do not implicate the rights of a jury trial and proof
beyond a reasonable doubt.” Maj. Op., supra, at 24 (citing
Apprendi, 530 U.S. at 490.). Unless and until the Supreme
Court instructs otherwise, I can not help but conclude that such
an approach can elevate theory over liberty in certain situations.

                               118
        Here, the sentencing judge meticulously computed the
sentencing range under the Guidelines, and articulated those
calculations with precision. She explained her consideration of
the 3553(a) factors as follows: “The Court believes that 100
months is reasonable in view of the considerations of section
3553(a).” My colleagues and I agree that the explanation given
is no explanation at all, and that a remand is required. However,
requiring more detailed explanations of the sentencing factors
under § 3553(a) will not negate the primacy of the Guideline
calculation.
       Here, the sentencing judge’s determination that Grier
committed a separate crime of aggravated assault raised Grier’s
Guidelines range from 84 to 105 months to 120 to 150 months.
Accordingly, the latter range became the starting point for the
exercise of the sentencing judge’s discretion, not the range that
would have guided that discretion absent the finding that he
committed an uncharged aggravated assault. Not surprisingly,
Grier’s sentence fell within the Guidelines-determined range,
even after the sentencing judge exercised her discretion under
18 U.S.C. § 3553(a).
       I simply can not agree that the Fifth Amendment’s
guarantee of Due Process is not implicated by that calculus
given the definition of “statutory maximum” that pertains after
Blakely. The finding of an aggravated assault and the
concomitant elevation of the sentencing range exposed Grier to
a longer period of imprisonment than the facts he admitted
during the Rule 11 colloquy. Nothing on this record even faintly
suggests that Grier would have received as severe a sentence
had he not been “convicted” of an uncharged aggravated assault,


                              119
the existence of which was only established by a preponderance
of the evidence.54
        The majority is not troubled by this increase in Grier’s
sentence because my colleagues’ analysis is driven by the
conclusion that Grier’s guilty plea “exposed” him to the
statutory maximum of 120 months for the illegal possession of
a firearm. However, as Judge Sloviter explains, absent the
finding that Grier committed an aggravated assault, the
sentencing judge “could have sentenced Grier at the low range
of the advisory Guideline, i.e.[,] to 84 months imprisonment.”
Dis. Op., supra, at 93. The court also may have sentenced him
to less than the low end of that Guideline range. Grier’s
increased “exposure” is not based upon his character, his
conduct, or the circumstances of the offense he pled guilty to.
Although the majority apparently believes that the aggravated
assault was merely a circumstance surrounding the commission
of his crime, those circumstances would have been exactly the
same absent a finding that his conduct amounted to a felony
under U.S.S.G. § 2K2.1(b)(5).




       54
         For purposes of this discussion, I will assume that this
record is sufficient to prove an aggravated assault. However, I
join Judge Sloviter’s discussion of that evidence. Although
Grier had a gun, he fired it into the air, not at Navarro, even
though he was attacked by Navarro. Accordingly, this record
establishes nothing more than a simple assault by physical
menace as defined in 18 Pa. Cons. Stat. § 2701(a)(3), as Judge
Sloviter explains. See Dis. Op., supra, at 103-05.

                              120
        The sentencing court’s conclusion that Grier’s conduct
constituted an aggravated assault under Pennsylvania law
changed nothing about Grier, or the circumstances of the
offense. It did not alter his culpability, or remorse or increase
the need to deter others, protect the public, punish Grier, or
increase his threat to the community. Any sentencing judge
could assess those factors from his conduct and his background.
The finding that he committed the felony of aggravated assault
did, however, drastically impact his sentence. It required the
sentencing court to apply whatever discretionary “break” it was
going to “cut him” to a higher sentencing range than would have
otherwise applied. The fact that the court could exercise its
discretion to depart downard (as it did), because of the victim’s
conduct does not alter the fact that the departure started from a
higher range, and thus finished in a higher range, than would
have been appropriate otherwise. The additional “circumstance”
of the aggravated assault is therefore not just another sentencing
factor.
       It is certainly defensible from a policy standpoint that
one’s sentence should be further enhanced if the circumstances
of his/her crime, themselves, constitute another crime.
However, when that is the sentencing consideration, the Fifth
Amendment requires that “crime” to be established the same as
any other crime: by proof beyond a reasonable doubt. If
“sentencing factors” are to be transformed into “elements” of an
uncharged crime, those “elements” must be proven the same as
the elements of any other crime before they can impact the
defendant’s liberty.




                               121
                               B.
        Tracking Supreme Court precedent through the
constitutional thicket of sentencing discloses that 18 U.S.C. §
3553(a) codifies factors that have historically guided judicial
discretion in sentencing. Indeed, almost fifty years before
Congress enacted        § 3553(a), the Court explained in
Pennsylvania ex rel. Sullivan v. Ashe, 302 U.S. 51 (1937), that
a state:
       may inflict a deserved penalty merely to vindicate
       the law or to deter or to reform the offender or for
       all of these purposes. For the determination of
       sentences, justice generally requires consideration
       of more than the particular acts by which the
       crime was committed and that there be taken into
       account the circumstances of the offense together
       with the character and propensities of the
       offender. His past may be taken to indicate his
       present purposes and tendencies and significantly
       to suggest the period of restraint and the kind of
       discipline that ought to be imposed upon him.
Id. at 55; Solem v. Helm, 463 U.S. 277, 286 (1983) (“The
constitutional principle of [sentencing] proportionality has been
recognized explicitly in this Court for almost a century.”); see
also Richard S. Frase, Punishment Purposes, 58 Stan. L. Rev.
67, 82 (2005) (explaining the rationales behind the subsections




                              122
of § 3553(a), including the endorsement of “proportionality
values.”).55
       Thus, factors such as whether a defendant brandished or
fired a gun during the course of the offense of conviction, or
whether he/she threatened or injured someone have, of
necessity, traditionally had “a substantial impact” on selecting
an appropriate sentence from within the range of punishment
authorized by a legislature upon conviction for a charged
offense. See Harris v. United States, 536 U.S. 545, 549 (2002).
Absent a legislatively mandated sentence of determinate length,
judges could hardly do anything other than base a sentence upon
the “special features of the manner in which the . . . basic crime
could be carried out,” and the offender who carried it out. Id. at
554 (quotations omitted) (citing Castillo v. United States, 530
U.S. 120,126 (2000)).
        Although the distinction between sentencing factors and
elements of a crime has lead to no small amount of confusion as
Congress and state legislatures have enacted mandatory
sentencing enhancements, it remains clear that the factors that
must be considered under § 3553(a) pertain to the kind of
historic sentencing factors exemplified by considerations that
assess the offender’s risk to the community, employability,


       55
         We made a similar point in Cooper, 437 F.3d 324 (3d
Cir. 2006), noting: “Pre-guidelines sentences were based on the
facts of the crime, the criminal history of the defendant, the
defendant’s personal characteristics, the applicable statutory
law, and general penological goals and principles. These are all
found in 18 U.S.C. §§ 3553(a)(1), (2), and (3).” Id. at 326 n.2.

                               123
susceptibility to rehabilitation and (more recently), the need for
substance abuse treatment or counseling. When the latter
consideration is present, sentencing judges historically relied
upon many of the same sentencing factors incorporated into §
3553(a) to choose between inpatient and outpatient treatment.
Obviously, a sentencing factor can not be relied upon until a
court finds that the factor is present.
        In Harris, the Supreme Court emphasized that this
traditional “[j]udicial factfinding in the course of selecting a
sentence within the authorized [Guideline] range does not
implicate the indictment, jury-trial and reasonable-doubt
components of the Fifth and Sixth Amendments.” Harris, 536
U.S. at 558. In Harris and McMillan v. Pennsylvania, 477 U.S.
79 (1979), the Court concluded that the Constitution is not
offended by the historical manner in which judges have gone
about fact finding that inform the appropriate exercise of
judicial discretion at sentencing. Therefore, legislatures could
identify certain sentencing factors and determine the weight
those factors were to be given in selecting an appropriate
sentence. That is what distinguishes Harris and McMillan from
Apprendi and its progeny.56



       56
         By reconciling Harris and McMillan with the Apprendi
line of cases, I do not intend to minimize the tension in that line
of jurisprudence that Judge Ambro alludes to. Nevertheless, as
Judge Ambro states, until the rapidly-evolving law of sentencing
under the Fifth and Sixth Amendments resolves, I agree that we
must attempt to interpret the Apprendi jurisprudence in a manner
that reconciles the Court’s pronouncements. However, I do not

                               124
        The instant case, however, is not a situation where the
judge relied upon traditional sentencing factors relevant to the
defendant’s character or the offense of conviction to decide
upon an appropriate sentence. Rather, the judge here relied
upon a finding that Grier committed the crime of aggravated
assault during the commission of the crime to which he pled
guilty. Marshaling the underlying facts into elements of an
uncharged crime goes beyond the traditional use of sentencing
factors. It does more than punish Grier for the manner in which
he illegally possessed the gun; it punishes him for a crime the
Commonwealth of Pennsylvania never saw fit to charge him
with.57
       My colleagues view this as a distinction without a
difference. Given their constitutional analysis, they merely view
the aggravated assault as conduct that the court could consider
in sentencing. Indeed, the court could have, and should have,
considered all of Grier’s conduct when deciding upon a
sentence. Whatever adjustment the sentencing judge would
have made to the Guideline calculation based upon Grier’s


agree that resolution of tension within the Court’s jurisprudence
supports the majority’s position.
       57
        Indeed, given the majority’s ruling that only a
preponderance of the evidence is required to punish him for that
crime, and the marginal nature of Navarro’s testimony, the
decision to forgo prosecution for the purported felony and
simply punish Grier for it by enhancing his sentence for the
uncharged crime appears a wise decision, although of
questionable constitutionality.

                              125
conduct or character would have operated on the Guideline
range of 84 to 105 months that is set forth for the offense of
illegally possessing a firearm. However, the sentencing court
did more. The sentence it selected was intended to punish Grier
for an aggravated assault that he was never convicted of. That
is very different—both in terms of the potential sentence, and in
terms of the Fifth Amendment—than what sentencing courts
traditionally have used to inform sentencing decisions.58
        In noting that the Sixth Amendment guarantee of a jury
trial and the Fifth Amendment guarantee of due process of law
“stand as a bulwark of individual liberty,” Maj. Op., supra, at
10, my colleagues in the majority acknowledge that the
“principle is rooted in common law considerations of
fundamental fairness.” Id. (citing Blakely, 542 U.S. at 296, 301-
02, 305-07, 311-12; Apprendi, 530 U.S. at 476-77; Harris, 536



       58
         Any concerns about the practicality of requiring any
enhancement for an uncharged crime to be based upon proof
beyond a reasonable doubt is easily dispelled. Since Apprendi,
federal and state courts have relied upon jury interrogatories or
relied upon a bifurcated trial to establish facts relevant to certain
sentencing enhancements under the advisory Guidelines. See
Cunningham v. California, No. 05-6551, 2007 WL 135687, at
*15 (Jan. 22, 2007). Moreover, inasmuch as the vast majority
of cases are disposed of by guilty pleas, the plea colloquy can
simply be augmented to have the defendant knowingly and
intelligently waive the right to require proof of certain facts
constituting an uncharged enhancing crime beyond a reasonable
doubt.

                                126
U.S. at 556-68 (plurality opinion)). My colleagues then favor us
with the following “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.”
Maj. Op., supra, at 11 (citing Apprendi, 530 U.S. at 483).
        My colleagues read Harris, Apprendi, and McMillan to
mean that once a charged offense has been admitted or
established by proof beyond a reasonable doubt, the defendant
“has no grounds to complain when the maximum punishment
authorized by the legislature is meted out by a judge.” Maj. Op.,
supra, at 12 (citing Blakely, 542 U.S. at 304-05, 309; Harris,
536 U.S. at 556-68). Before Blakely, one could hardly have
disagreed. However, as I noted at the outset, Blakely explains
that the jury’s verdict does not expose the defendant to the
maximum punishment “authorized by the legislature.” Rather,
the jury’s verdict exposes the defendant to the maximum
punishment that can be imposed “solely on the basis of the facts
reflected in the jury verdict or admitted by the defendant.”
Blakely, 542 U.S. at 303 (emphasis in original).
       Moreover, the majority refuses to recognize that its
holding contradicts longstanding Fifth Amendment principles by
ignoring the risk of erroneously setting the sentencing range too

                              127
high based upon consideration of an uncharged crime during the
sentencing process. See Dis. Op., supra, at 75-77 (discussing
the rationale for requiring proof beyond a reasonable doubt
where a criminal defendant’s liberty is at jeopardy). That risk is
reduced to constitutionally acceptable levels when a sentencing
range is established by factoring in crimes for which the
defendant has been convicted. That is the defendant’s criminal
history. The convictions comprising that history have been
established by proof beyond a reasonable doubt, and the
defendant has been afforded the full panoply of constitutional
rights that comprise the “bulwark” that safeguards him/her from
the power of the state. Considering crimes that rest only upon a
preponderance of the evidence is different.
        This is more than a technical distinction based on
splitting jurisprudential hairs. As Apprendi teaches, “the
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 verdict?”
Apprendi, 530 U.S. at 494. Requiring certainty beyond a
reasonable doubt of such crimes is “not motivated by [Fifth]
Amendment formalism, but by the need to preserve [Fifth]
Amendment substance.” Booker, 543 U.S. at 237 (referring to
the Sixth Amendment).
       As we see from the sentencing calculation here, the
distinction has a definite impact under § 3553(a) in those few
instances where the Guidelines require the sentencing court to
set a Guideline range based upon the commission of an
uncharged crime. Unless that crime is admitted or established
by proof beyond a reasonable doubt, the defendant is being
punished for committing a crime the existence of which lacks

                               128
the certainty required by the Fifth Amendment. Thus,
“sentencing factors” are silently transformed into “elements” of
uncharged crimes. Although sentencing judges remain free to
consider any and all conduct, just as they always have, the
Government can not punish for a crime without establishing that
crime to the level of certainty required under the Fifth
Amendment. This restriction is required to “give intelligible
content to the right of [due process]. That right is no mere
procedural formality, but a fundamental reservation of power in
our constitutional structure.” Blakely, 542 U.S. at 305-06.
                                II.
       Judge Ambro believes that finding a Fifth Amendment
violation here is “incompatible with the Supreme Court’s ruling
in United States v. Watts.” Con. Op., supra, at 60 (Ambro, J.
concurring). I disagree. Although I agree that the Court’s
holding in Watts is at first difficult to reconcile with concluding
that Grier’s Fifth Amendment right to due process was violated,
Watts does not preclude that result.
       In Watts, police discovered crack cocaine and two loaded
guns in Watts’s house. The government charged him with
possessing crack with intent to distribute in violation of 21
U.S.C. § 841(a)(1) and with using a firearm in relation to a drug
offense in violation of § 18 U.S.C. § 924(c). A jury convicted
Watts on the drug charge, but acquitted him of the gun charge.
Nonetheless, the sentencing judge enhanced Watts’s sentence
based on its finding by a preponderance of the evidence that he
possessed the guns during the offense of conviction. The Court
of Appeals for the Ninth Circuit overturned the sentence. That
court held: “a sentencing judge may not, under any standard of

                               129
proof, rely on facts of which the defendant was acquitted”
without violating the Fifth Amendment’s Double Jeopardy
Clause. Watts, 519 U.S. at 149-150 (quotations omitted).
        The Supreme Court overruled the appellate court. The
Supreme Court held that sentencing judges may consider
conduct underlying charges the defendant has been acquitted of
to enhance his/her sentence without violating his/her
constitutional rights. Id. at 156. It is of particular relevance to
our inquiry that the Watts Court noted that 18 U.S.C. § 3661 and
U.S.S.G. § 1B1.3 work in tandem to reinforce “the longstanding
principle that sentencing courts have broad discretion to
consider various kinds of information,” Watts, 519 U.S. at 151,
in selecting an appropriate sentence. See id. at 151-54. The
Court cited McMillan for the proposition that “application of the
preponderance standard at sentencing generally satisfies due
process.” Id. at 156. The Court explained that “an 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.” Id. at 156 (quoting
Dowling v. United States, 493 U.S. 342, 349 (1990)).
       Watts is distinguishable from the instant case because, as
I have explained, Grier’s enhancement was based upon the
sentencing judge’s finding that his conduct constituted a
separate crime under Pennsylvania law; it was not based on the
conduct alone. Watts reinforces the fact that sentencing judges
have historically relied upon a virtually boundless universe of
facts regarding the offender and the nature of the offense of
conviction to inform discretion and select an appropriate
sentence. Accordingly, the Court’s decision in Watts approving
a sentencing enhancement based on a defendant’s possession of

                               130
a gun—even in the face of the jury’s acquittal of possessing it in
connection with a controlled substance violation—can be
understood as being rooted in the Court’s traditional
understanding of the kind of facts judges consider in crafting an
appropriate sentence.     However, neither that traditional
understanding nor the Constitution allow enhancement of a
sentence based on a sentencing judge’s finding by a
preponderance of evidence that a defendant is guilty of another
crime.59


       59
         Judge Ambro accurately notes that Watts has faced
almost “unrelenting challenge.” Con. Op., supra, at 60 (Ambro,
J. concurring). Indeed, since Watts was decided in 1997, only
once has a majority of the Supreme Court cited Watts in
developing its jurisprudence with respect to the Sixth
Amendment’s Jury Trial Clause. In Booker, the Court
mentioned Watts only to distinguish it as “present[ing] a very
narrow question regarding the interaction of the Guidelines with
the Double Jeopardy Clause.” Booker, 542 U.S. at 240 n.4.
Moreover, the Court noted that Watts “did not even have the
benefit of full briefing or oral argument.” Id.
       Likewise, the Booker Court distinguished United States
v. Witte, 515 U.S. 389 (1995), where it held that the Double
Jeopardy Clause did not preclude prosecution for conduct that
was the basis for an enhancement of the defendant’s sentence in
a previous case because “consideration of information about the
defendant’s character and conduct at sentencing does not result
in ‘punishment’ for any offense other than the one of which the
defendant was convicted. Rather, the defendant is ‘punished
only for the fact that the present offense was carried out in a

                               131
       As I noted earlier, “Booker did not address the
applicability of the right to proof beyond a reasonable doubt in
the advisory Guidelines system[,]” because it had no reason to.
Maj. Op., supra, at 17. However, Booker’s silence on the issue
is not a proclamation that the Fifth Amendment can never
require proof beyond a reasonable doubt at sentencing.60 Indeed,
the Supreme Court has suggested the contrary, and we have also
expressed concerns about such a narrow interpretation of the
Fifth Amendment.
                               III.
        “It was in McMillan v. Pennsylvania that [the Supreme]
Court, for the first time, coined the term ‘sentencing factor’ to
refer to a fact that was not found by a jury but that could affect
the sentence imposed by the judge.” Apprendi, 530 U.S. at 485
(citation omitted). McMillan was also the advent of the “tail
which wags the dog” metaphor, which we amplified in United
States v. Kikumura, 918 F.2d 1084 (3d Cir. 1990). 61 See Con.



manner that warrants increased punishment.’” Watts, 519 U.S.
at 155 (quoting Witte, 515 U.S. at 403).
       60
        I share the dismay expressed by Judges Sloviter and
Ambro: “‘Can the majority really be suggesting that the Due
Process Clause . . . is never applicable to any sentencing
issue?’” Con. Op., supra, at 52 (quoting Dis. Op., supra, at 84)
(Ambro, J. concurring).
       61
       See McMillan, 477 U.S. at 88 (explaining that
Pennsylvania’s mandatory minimum law did not vest in the state

                               132
Op., supra, at 54-58 (Ambro, J. concurring); Maj. Op., supra, at
24 n.8. The metaphor resulted from our concern that a
sentencing factor that dramatically increased one’s sentence
should rest on more than a preponderance of the evidence.
Although we did not articulate it in Kikumura, that concern was
clearly a manifestation of the traditional interest in mitigating
the risk of error that is incorporated into the Fifth Amendment
by the guarantee of a heightened standard of proof. See Dis.
Op., supra, at 75-77.
       I share Judge Ambro’s concern about the ease with which
the majority questions the continued vitality of our analysis in
Kikumura. The concern recognized in Kikumura that a
heightened standard of proof is appropriate when the sentencing
procedure becomes the “tail which wagged the dog” still lurks
within the interstices of the advisory Guidelines that must be
applied after Booker. However, even though that elusive
measure allows sentencing judges to identify some situations
where the Fifth Amendment requires a heightened standard of
proof, it will not sniff out all such cases.62


legislature unchecked authority to redefine crimes because,
among other reasons, “[t]he 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.”).
       62
        It is, indeed, as Judge Ambro notes, odd that the
majority is able to confidently conclude that the Supreme Court
could not have intended to upset twenty years of practice that
has governed sentencings since the advent of the Guidelines
while undermining Kikumura, our widely-accepted precedent

                              133
                               A.
       In Kikumura, we relied upon McMillan’s tail-wagging-
doggie metaphor in stating: “[where] the magnitude of a
contemplated departure is sufficiently great . . . the factfinding
underlying that departure must be established at least by clear
and convincing evidence.” Kikumura, 918 F.2d at 1101. As
Judge Ambro notes, we did not require proof beyond a
reasonable doubt because the defendant only argued for a
standard of clear and convincing evidence. Con. Op., supra, at
54 n.25 (citing Kikumura, 918 F.2d at 1101) (Ambro, J.
concurring). Thus, under Kikumura, the applicable standard of
proof under the Fifth Amendment turns on the differential
between the sentence a defendant would have received absent
certain findings of fact, and the proposed sentence that will be
imposed based on those additional findings. At some point, that
differential becomes too disproportionate to the unenhanced
sentence to allow the increase to rest only on a preponderance of
the evidence.
       However, there is no way to identify those situations
consistently. In Kikumura, we explained:
       if proof by a mere preponderance is sufficient to
       justify a two-level increase for willfully impeding
       an investigation . . . then proof by that identical



that affirms a heightened standard of proof at sentencing under
the Fifth Amendment depending on the impact of a sentencing
enhancement. See Con. Op., supra, at 57 (Ambro, J.
concurring).

                               134
       standard is also appropriate in order to justify, for
       example, a four-level increase for organizing an
       offense . . . or a six-level increase for unlawfully
       receiving explosives that one knows to be stolen
       . . . or probably even a ten-level increase for
       distributing those explosives to a fugitive from
       justice.
Id. at 1100 (quotations omitted). We were concerned in
Kikumura because the enhancement there raised the defendant’s
exposure “from about 30 months to 30 years—the equivalent of
a 22-level increase in his offense level.” Id. at 1100.
Accordingly, we can conclude with some confidence that the
existence of sentencing factors that result in that large an
increase in a sentencing range is of sufficient gravamen to start
Rex “awaggin.” Similarly, we can confidently conclude that an
increase of one or two levels will not have much of an impact on
our metaphorical mastiff. But where do we draw the line?
       The extremes are easy. But how do we construct any kind
of consistent jurisprudence that sentencing courts can apply in
the overwhelming majority of cases that cluster away from the
polar extremes? Justice Scalia addresses just such a dilemma in
Blakely.
                                B.
       In discussing the application of the Sixth Amendment in
Blakely, Justice Scalia noted that legislatures could “establish
legally essential sentencing factors within limits” that would be
crossed “when, perhaps, the sentencing factor is a ‘tail which
wags the dog of the substantive offense.’” Blakely, 542 U.S. at
307 (quoting McMillan, 477 U.S. at 88) (emphasis in original).

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Under such a sentencing scheme, the Sixth Amendment
guarantee of a jury trial would be triggered when the law went
“too far[,]” and “exceed[ed] the judicial estimation of the proper
role of the judge.” Id. (emphasis in original). Applying
Kikumura to that scenario, we could draw upon Blakely to
conclude that a heightened standard of proof is required when
the law goes too far; i.e., when the increase in the sentencing
range becomes “too” disproportionate to the pre-enhancement
range. However, there, just as with the protection guaranteed
under the Sixth Amendment, “[t]here is no answer that legal
analysis can provide. With too far as the yardstick, it is always
possible to disagree with such judgments and never to refute
them.” Blakely, 542 U.S. at 308 (emphasis in original).
       Thus, in the vast majority of cases gathered somewhere
in the middle, away from the extreme that concerned us in
Kikumura, it is possible for an appellate court to conclude that
a heightened standard of proof is required, yet never be able to
refute the trial court’s failure to require it. When sentencing
factors result in increases that are neither extreme, nor “de
minimis,” such a standard ceases being a workable “standard” at
all. Rather, it is merely an expression of the individual
sentencing judge’s subjective sense of fairness.
       In In Re Winship, the Court traced the long history of the
reasonable doubt standard, noting that it “dates at least from our
early years as a Nation.” 397 U.S. at 361. There, the Court
observed that any “society that values the good name and
freedom of every individual should not condemn a man for
commission of a crime when there is a reasonable doubt about
his guilt.” Id. at 363-64. That statement applies with equal
force to a sentencing that rests, in large part, upon the

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commission of a crime that has only been established by a
preponderance of the evidence.
        Kikumura is an example of the constitutional tension that
is created under the Fifth Amendment when liberty is placed on
such a precarious perch. Left only to the proportionality
calculus of the tail wagging the dog, we would have to conclude
“that the Framers . . . have left definition of the scope of [the
Fifth Amendment] up to judge’s intuitive sense of how far is too
far.” Blakely, 542 U.S. at 308 (emphasis in original).
       Yet, Kikumura’s doggie test tolerates this result in the
vast majority of cases because the increase in the sentencing
range will not be sufficiently disproportionate in the sentencing
judge’s mind to require a heightened standard of proof.
        Although such cases do not present the extreme
deprivation of liberty so apparent in Kikumura, they
nevertheless result in a deprivation of liberty. I am not as
anxious as my colleagues in the majority to conclude that a
society that proclaims the importance of liberty can so easily
tolerate a sentencing procedure that creates the risk of
incarcerating someone for an uncharged crime despite a
reasonable doubt about his/her guilt.
                               C.
       The cases Judge Ambro relies upon show the difficulty
of applying the doggie metaphor. See Con. Op., supra, at 55
n.26 (Ambro, J. concurring). For example, in United States v.
Mack, 229 F.3d 226, 232-35 (3d Cir. 2000), a 39% increase in
the Guideline range and a 12% increase in the actual sentence
was not viewed as a sufficient enhancement to trigger a

                              137
heightened standard for fact finding. However, it is not difficult
to conceive of other sentencing courts that would be very
uncomfortable allowing a 12% increase in the length of
incarceration based only upon a finding that the defendant
probably committed an uncharged crime.
       United States v. Lombard, 72 F.3d 170 (1st Cir. 1995),
another of Judge Ambro’s examples, illustrates why the Court
of Appeals for the First Circuit relied upon the doggie metaphor
to conclude that a federal firearms prosecution was merely a
subterfuge to sentence the defendant for murders he had been
acquitted of. See Con. Op., supra, at 61-63 (Ambro, J.
concurring).
        If the Fifth Amendment requires a heightened standard of
proof before an uncharged crime can be used to enhance a
defendant’s sentence, that protection applies whether the
sentencing judge considers the increase “significant” or
“insignificant.” Any increase in the term of imprisonment is
surely significant to the person who serves the sentence, and I
believe it should also be viewed as significant by the society that
incarcerates him/her. The Supreme Court has reminded us that
“[a] single day in prison may be unconstitutional in some
circumstances.” See Solem, 463 U.S. at 290 (citing Robinson v.
California, 370 U.S. 660, 667 (1962)). The constitutional evil
is not the duration of the constitutional deprivation, it is the fact
of it.
       Although a criminal conviction certainly reduces a
defendant’s constitutional rights, it does not jettison all of the
protections embodied in the Constitution. That is evident from
a long line of cases that predate In re Winship and extend to

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Apprendi and its progeny. See, e.g., Townsend v. Burke, 334
U.S. 736, 741 (1948) (holding that absence of counsel during
sentencing, coupled with prejudice, violated the Sixth
Amendment guarantee of counsel).
       Nor does an inquiry into whether “the primary conduct
for which [the defendant] is being punished[,]” resolve the Fifth
Amendment problem. See Con. Op., supra, at 63 (quoting
United States v. Mobley, 956 F.2d 450, 459 (3d Cir. 1992))
(emphasis omitted) (Ambro, J. concurring). Accordingly, I do
not share Judge Ambro’s view of the congruence between
Mobley and the position espoused by the majority. I agree with
Judge Sloviter’s explanation of why the decision in Mobley
offers little support for the majority’s analysis. See Dis. Op.,
supra, at 82-83. In addition, I note that Mobley came twelve
years before the Court defined “statutory maximum” in Blakely,
for purposes of the Guidelines. Moreover, Mobley, like Watts,
Harris and McMillan, involved sentencing for conduct; it did
not inquire into the constitutionality of basing a sentence on an
uncharged crime.
        Exposing a defendant to punishment for a crime based
only upon facts that are treated as elements of an uncharged
offense creates the very real danger of establishing a “shadow
criminal code,” just as Judge Ambro states. See Con. Op.,
supra, at 40 (Ambro, J. concurring). The reality of the
sentencing process and the Fifth Amendment dictates
demarcation between using circumstances as sentencing factors,
and using them as elements of an uncharged crime. The “bright-
line rule” of Apprendi, requires that we construct that divide in
a manner that maintains the traditional distinction between
sentencing factors and factors that operate as elements of

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uncharged crimes using the Fifth Amendment as our straight-
edge.
        Thus, although I agree with Judge Ambro that it is not
necessary to disturb the reasoning of Kikumura, the Kikumura
calculus is of little assistance in determining when the Fifth
Amendment requires a heightened standard of proof here, and
in the vast majority of cases. Nevertheless, even that test is
better than the sentencing procedure legitimized by the majority,
as that standard allows little if any room for the operation of the
Fifth Amendment in the all-important sentencing context.63
                               IV.
        Like Judge Sloviter, I also think that the Supreme Court’s
recent decision in Cunningham v. California, 2007 WL 135687,
is relevant to the Fifth Amendment question raised here. That
case is addressed in Judge Sloviter’s dissent. See Dis. Op.,
supra, at 74, 78, 91-92, 95-97. However, at the risk of
redundancy, it may be helpful to elaborate briefly.
       The defendant in Cunningham was convicted of
continuous sexual abuse of a child under the age of 14, and
sentenced pursuant to California’s determinate sentencing law
(“DSL”). The DSL provided for three different terms of
imprisonment following conviction depending on the existence
of aggravating or mitigating factors found by the sentencing



       63
        I think it fair to conclude that both the defendant and
the Government will usually care more about the sentence that
is imposed than the offense the defendant is convicted of.

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court.64 In addition to the aggravating factors, which allowed a
sentencing court to impose a sentence other than the middle
range, the sentencing scheme also allowed for a sentence “above
an upper term based on specified statutory enhancements
relating to the defendant’s criminal history or circumstances of
the crime. [However,] [u]nlike aggravating circumstances,
statutory enhancements [had to] be charged in the indictment,
and the underlying facts [had to] be proved to the jury beyond a
reasonable doubt.” 2007 WL 135687, at *7 (citing Cal. Penal
Code Ann. § 1170.1(e)).


       64
         Specifically, the relevant section provides:
       Any person who either resides in the same home
       with the minor child or has recurring access to the
       child, who over a period of time, not less than
       three months in duration, engages in three or more
       acts of substantial sexual conduct with a child
       under the age of 14 years at the time of the
       commission of the offense, as defined in
       subdivision (b) of Section 1203.066 or three or
       more acts of lewd or lascivious conduct, as
       defined in section 288 with a child under the age
       of 14 years at the time of the commission of the
       offense is guilty of the offense of continuous
       sexual abuse of a child and shall be punished by
       imprisonment in the state prison for a term of 6,
       12, or 16 years.
Cal. Penal Code Ann. § 288.5(a) (West 1999). See also Cal.
Penal Code Ann. § 667 et seq. (West Supp. 2006) (setting forth
the bases for enhancement).

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        Following his conviction, Cunningham could have been
sentenced to a lower term of six years, a middle term of 12
years, or an upper term of 16 years. California law required that
the middle term of 12 years be imposed unless the sentencing
judge found circumstances in aggravation or mitigation.
Following a sentencing hearing, the judge found six aggravating
factors and one mitigating factor by a preponderance of the
evidence. The aggravating factors included the vulnerability of
the victim and Cunningham’s violent conduct. The only
mitigating factor was the absence of a prior criminal record.65
In concluding that these factors had been established by a
preponderance of the evidence, the sentencing court relied upon
several factors including “the trial record; probation officer’s
report; statements and aggravation or mitigation submitted by
the parties, the victim, or the victim’s family, ‘and any further
evidence introduced at the sentencing hearing.’”            2007
WL135687, at *5 (quoting People v. Black, 113 P.3d 534, 538
(Cal. 2005)).


       65
         Not surprisingly, as I noted above, these are the kind of
traditional sentencing factors that judges have historically
considered, with or without guidelines. They are included
within the considerations codified at 18 U.S.C. § 3553(a). See
18 U.S.C. § 3553(a)(1) (providing that “the nature and
circumstances of the offense and the history and characteristics
of the defendant” should be considered when imposing
sentence). The absence of prior record is incorporated into the
Guidelines through the Criminal History Category component
of the calculation.       U.S.S.G. § 4A1.1; 18 U.S.C. §
3553(a)(4)(A).

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        The defendant challenged the sentencing scheme, arguing
that it could not survive the Court’s decision in Booker. In
discussing the challenged DSL, the Supreme Court noted that
the California Supreme Court had upheld that sentencing
scheme against a Booker-premised constitutional challenge on
several grounds.       The California Supreme Court had
acknowledged the DSL appeared in tension with the rule of
Apprendi on its surface. However, that court concluded that
California’s scheme was not in tension with Apprendi “in
‘operation and effect.’” 2007 WL 135687, at *11 (quoting
Black, 113 P.3d at 543). The California court reached that
conclusion by reasoning that the “DSL ‘simply authorizes a
sentencing court to engage in a type of factfinding that
traditionally has been incident to the judge’s selection of an
appropriate sentence within a statutorily prescribed sentencing
range.’” 2007 WL 135687, at *11 (quoting Black, 113 P.3d at
543). The California court surmised that the statutory maximum
remained the upper limit to which the defendant could be
sentenced following his conviction, “‘and a trial court’s
imposition of an upper term sentence does not violate a
defendant’s right to a jury trial under the principles set forth in
Apprendi, Blakely, and Booker.’” 2007 WL 135687, at *11
(quoting Black, 113 P.3d at 543). Rejecting the California
Supreme Court’s analysis, the Supreme Court explained:
       We cautioned in Blakely, however that broad
       discretion to decide what facts may support an
       enhanced sentence, or to determine whether an
       enhanced sentence is warranted in any particular
       case, does not shield a sentencing system from the
       force of our decisions. If the jury’s verdict alone

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       does not authorize the sentence, if, instead, the
       judge must find an additional fact to impose the
       longer term, the Sixth Amendment requirement is
       not satisfied.
2007 WL 135687, at *12 (citing Blakely, 542 U.S. at 305 ).
       I agree that the federal Guidelines are distinguishable
from the sentencing scheme in Cunningham because the post-
Booker guidelines do not require the sentencing judge to impose
a given sentence absent additional findings of fact, as was the
case with the DSL. Indeed, this is no doubt the distinction that
the majority and the concurrences rely upon in suggesting that
a preponderance of the evidence standard is all that is required
here. See Maj. Op., supra, at 18 n.6; see also Con. Op., supra,
at 36 (Rendell, J. concurring); Con. Op., supra, at 50 n.24
(Ambro, J. concurring).       However, as Judge Sloviter’s
discussion of Cunningham suggests, this distinction is without
a constitutional difference.
       At the risk of belaboring the point, I think it important to
reemphasize that Grier’s sentence did not result from the
exercise of discretion based only upon facts established beyond
a reasonable doubt. Rather, his sentence is based upon a finding
by a preponderance of the evidence that he committed
aggravated assault. That finding of fact (i.e., conclusion of law)
did not flow from his guilty plea, yet it exposed him to an
increased sentence.
       Thus, even though my colleagues maintain that Grier’s
sentence resulted from the appropriate exercise of judicial
discretion within a defined range, as authorized in Booker, 543
U.S. at 233, it is not that simple given Blakely’s definition of

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“statutory maximum” and the operation of U.S.S.G. §
2K2.1(b)(5).
                               V.
       For the foregoing reasons, I respectfully dissent from the
the majority opinion. Likewise, I can not join Judge Ambro’s
concurring opinion, primarily, because he suggests a rule that
would require the protections of the Fifth and Sixth
Amendments for the finding of “every fact (save prior
convictions) identified by the law itself as deserving of
additional punishment, no matter what that fact may be called.”
He believes that “[o]nly in this way [will] the principles of
Apprendi—followed through in Blakely, Booker, and, most
recently, Cunningham—be fully respected.” Con. Op., supra,
at 39-40 (footnote omitted) (Ambro, J. concurring). However,
such a rule would draw an artificial distinction between those
factors which judges must consider to fashion an appropriate
sentence—factors they have considered since “time out of
mind”—and those factors which the legislature may
appropriately require the judge to consider in imposing sentence
in a given instance. Yet, in practice, those two sets of factors
will always substantially overlap if they are not identical. An
examination of § 3553(a) illustrates this. Legislators and judges
will usually agree on factors which common-sense and social
responsibility require be considered at sentencing. Rather, the
distinction must be based upon the traditional concept of due
process that forbids punishing someone for a crime in the
absence of sufficient proof to justify the punishment.
      Accordingly, I respectfully dissent from the majority
opinion, and instead join Judge Sloviter in dissent.

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