                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-6-2006

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Precedential or Non-Precedential: Precedential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 October 25, 2005
          Before: SCIRICA,* Chief Judge, SLOVITER
                  and FISHER, Circuit Judges.



      *
        This appeal was argued before the panel of Judges
Sloviter, Fisher and Rosenn. The coram was reconstituted to
include Chief Judge Scirica after the death of Judge Rosenn.
                    (Filed June 6, 2006)


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

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

Theodore B. Smith, III
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




                OPINION OF THE COURT




                             2
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 do not implicate the constitutional right
to trial by jury. We now confirm that these facts likewise do not
implicate the constitutional right to 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. The
two men separated, with Grier holding the 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


                                3
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
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 found that Grier’s
conduct during the altercation with Navarro constituted the
felony offense of aggravated assault under Pennsylvania law,
see 18 Pa. Cons. Stat. § 2702,1 and that the offense had been


       1
       Pennsylvania law defines aggravated assault as follows:
       A person is guilty of aggravated assault if he:
             (1) attempts to cause serious bodily
             injury to another, or causes such
             injury intentionally, knowingly or
             recklessly under circumstances
             manifesting extreme indifference to
             the value of human life; [or]
             ....
             (4) attempts to cause or

                                4
committed in connection with the crime of conviction (unlawful
possession of a firearm). This finding resulted in a four-level
enhancement in Grier’s offense level under the United States
Sentencing Guidelines, raising it from 23 to 27, see U.S.
Sentencing Guidelines Manual § 2K2.1(b)(5), and a fifty percent
increase in the recommended imprisonment range, raising it
from 84 to 105 months to 120 to 150 months, see id. ch. 5, pt. A.
The final Guidelines range, in light of the statutory maximum
sentence of ten years, see 18 U.S.C. § 924(a)(2), was 120
months. See U.S. Sentencing Guidelines Manual § 5G1.1.

        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




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

                               5
admitted, however, that he had not seen Grier “pull” the gun
from his clothing:

       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, 2701.2 This


       2
        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) a tte m p ts  to     cau s e or
              intentio na lly, k n o w 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 . . . .

                               6
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


       (b) Grading.–Simple assault is a misdemeanor of
       the second degree unless committed . . . in a fight
       or scuffle entered into by mutual consent, in
       which case it is a misdemeanor of the third
       degree . . . .
18 Pa. Cons. Stat. § 2701.

                                7
had committed aggravated assault under Pennsylvania law, and
in imposing sentence without fully articulating its consideration
of the factors under 18 U.S.C. § 3553(a). We have jurisdiction
over these claims under 18 U.S.C. § 3742(a) and 28 U.S.C.
§ 1291. See United States v. Cooper, 437 F.3d 324, 327-28 &
n.4 (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 and the court of appeals
must decide whether the 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

                                8
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
United States v. Cooper, 437 F.3d 324 (3d Cir. 2006), see id. 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). That a
defendant does not enjoy the right to a jury trial under Booker
ineluctably means that he or she does not enjoy the right to proof
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)

                                 9
(plurality opinion). Individuals must be provided notice of the
consequences of their conduct. They must be informed of the
nature of illegal acts, through legislative definition of the
elements of punishable crimes, and of the possible sentences for
those offenses upon conviction. See Blakely, 542 U.S. at 301-
02, 306-07, 311-12; Apprendi, 530 U.S. at 476-77, 489-94;
Harris, 536 U.S. at 556-68. 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.

        Individuals have the right under the Fifth and Sixth
Amendments 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 v. New Jersey, 530
U.S. 466 (2000): The facts constituting the elements of a crime
are those that increase the maximum punishment to which the
defendant is exposed under governing law. Id. 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

                               10
“crime.” Id. at 483 & n.10, 485-86, 490, 493-94 & nn.18-19
(citing Jones v. United States, 526 U.S. 227, 244-48 (1999);
Mullaney v. Wilbur, 421 U.S. 684, 697-98 (1975)); 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 556-68 (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
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 implicate or offend the Fifth and Sixth Amendment
rights to a jury trial and proof beyond a reasonable doubt.
Blakely, 542 U.S. at 309; 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).

                                  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.

                                  11
§ 841(a)(1), (b)(1)(a)(iii)). The United States Sentencing
Guidelines, however, prescribed a base imprisonment range of
210 to 262 months. Id. (citing U.S. Sentencing Guidelines
Manual §§ 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 crack 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,
constitute “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

                               12
a jury. Id. These facts are 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).

       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. Trial by jury is inherently incompatible with the
Guidelines scheme. Id.

        The Court resolved this problem by returning to the basis
of its holding: that 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 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

                                13
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
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),[3] 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). [4]” Booker, 543 U.S. at 259. The


       3
       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).
       4
        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;

                               14
       (2) was imposed as a result of an incorrect
       application of the sentencing guidelines;
       (3) is outside the applicable guideline
       range, and . . . the sentence departs from
       the applicable guideline range based on a
       factor that . . . does not advance the
       o b je c tiv e s s e t f o rth in s e c tio n
       3553(a)(2)[,] . . . is not authorized under
       section 3553(b)[, or] . . . is not justified by
       the facts of the case; or . . . the sentence
       departs to an unreasonable degree from the
       applicable guidelines range, having regard
       for the factors to be considered in
       imposing a sentence[;] . . . or
       (4) was imposed for an offense for which
       there is no applicable sentencing guideline
       and is plainly unreasonable.
The court of appeals shall give due regard to the
opportunity of the district court to judge the
credibility of the witnesses, and shall accept the
findings of fact of the district court unless they are
clearly erroneous and, except with respect to
determinations under subsection (3)(A) or (3)(B),
shall give due deference to the district court’s
application of the guidelines to the facts. With
respect to determinations under subsection (3)(A)
or (3)(B), the court of appeals shall review de
novo the district court’s application of the
guidelines to the facts.

                         15
excision of these provisions rendered the Guidelines advisory,
freeing the trial judge to impose any sentence permitted under
the United States Code regardless of the sentence recommended
by the Guidelines. Id. The maximum legislatively authorized
punishment to which the defendant is exposed was 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


18 U.S.C. § 3742(e).

                                16
of an enhanced sentence under the United States Sentencing
Guidelines based on the sentencing judge’s determination of a
fact . . . that was not found by the jury or admitted by the
defendant.” Petition for a Writ of Certiorari, Booker, 543 U.S.
220 (No. 04-104). The absence of discussion of the Fifth
Amendment is not, as the dissent seems to believe, 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
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,
259. They merely inform the judge’s broad discretion. Id.

        The sole legislative restrictions on the judge’s sentencing
authority post-Booker are those found in the United States Code.
The Code defines crimes and prescribes maximum sentences.
It 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 maximum
punishment. These facts must be established beyond a
reasonable doubt. Apprendi, 530 U.S. at 490. But, once these

                                17
facts are found, triggering the statutory maximum, the judge
may impose a sentence anywhere under that maximum without
constitutional qualm. Blakely, 542 U.S. at 309; Harris, 536 U.S.
at 556-68; Apprendi, 530 U.S. at 481-82; 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
within the authorized range does not implicate the . . .
reasonable-doubt component[] of the Fifth . . . Amendment[].”).

        This holding accords with other decisions addressing the
issue. See, e.g., United States v. Cooper, 437 F.3d 324, 330 (3d
Cir. 2006); United States v. Vaughn, 430 F.3d 518, 525-26 (2d
Cir. 2005), cert. denied sub nom. Lindo v. United States, 126 S.
Ct. 1665 (2006); United States v. Morris, 429 F.3d 65, 72 (4th
Cir. 2005); United States v. Price, 418 F.3d 771, 788 (7th Cir.
2005); United States v. Magallanez, 408 F.3d 672, 684-85 (10th
Cir.), cert. denied, 126 S. Ct. 468 (2005); United States v.
Pirani, 406 F.3d 543, 551 n.4 (8th Cir.) (en banc), cert. denied,
126 S. Ct. 266 (2005); United States v. Yagar, 404 F.3d 967,
972 (6th Cir. 2005); United States v. Mares, 402 F.3d 511, 519

                                18
& n.6 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005); United
States v. Duncan, 400 F.3d 1297, 1304-05 (11th Cir.), cert.
denied, 126 S. Ct. 432 (2005).

                                 4.

       The dissent 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.” It
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
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

                                19
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 mention of constitutional rights in Jones is in a
subsidiary context, within a discussion 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.

       There is no question of statutory interpretation here. The
Guidelines were clearly intended by Congress to operate as
sentencing enhancements, 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
maximum punishment to which the defendant is exposed. 530
U.S. at 490. This standard is not based upon the legislature’s

                               20
definition of a fact as an “element” or “enhancement,” id. at
494, 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. The sole question under Apprendi is whether the
facts at issue increase the maximum punishment to which the
defendant is exposed. 530 U.S. at 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 should
not be treated as “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, 494.

                                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, and has been approved by this Court, see, e.g.,
United States v. Mobley, 956 F.2d 450, 455 (3d Cir. 1992).

                                21
        We held in United States v. Kikumura, 918 F.2d 1084 (3d
Cir. 1990), that certain sentencing enhancements under the
Guidelines – those that significantly increase the recommended
sentence and “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 (quoting McMillan,
477 U.S. at 88). The jurisprudential basis of this holding,
grounded in dictum from McMillan v. Pennsylvania, 477 U.S.
79 (1986), has since been disavowed by the Supreme Court, see
Blakely, 542 U.S. at 307-08 (citing McMillan, 477 U.S. at 88),
and plainly conflicts with the principles underlying Booker and
its predecessors, see 543 U.S. at 259-60; see also Apprendi, 530
U.S. at 481-82 (noting that factfinding in the course of selecting
a sentence within the statutory range does not implicate the
rights to a jury trial and proof beyond a reasonable doubt). We
will therefore take the opportunity to overrule this aspect of
Kikumura. See Mennen Co. v. Atlantic Mut. Ins. Co., 147 F.3d
287, 294 n.9 (3d Cir. 1998) (noting that a panel of this Court
may overrule the holding of a prior panel that is in direct
conflict with intervening Supreme Court precedent).

       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 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

                               22
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
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.

                               23
§ 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
compliance with statutory mandates. See United States v.
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 imposed: 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”

                                24
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-
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).



                               25
       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,
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.

      The challenged finding in this case, that Grier committed
aggravated assault,5 is not clearly erroneous. Aggravated assault


       5
        The District Court did not make this finding on the
record, but adopted the conclusion of the presentence report.
See United States v. Collado, 975 F.2d 985, 990 (3d Cir. 1992)
(“Where . . . 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.”).

                               26
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).

        The evidence presented during the sentencing hearing
supports a finding that Grier attempted to cause bodily injury to
Navarro with a deadly weapon. 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.6 Soon


       6
        Defense counsel argues that the statements by these
bystanders were “classic hearsay.” This may be true, but the
Federal Rules of Evidence do not apply at sentencing, see Fed.
R. Evid. 1101(d)(3); see also Kikumura, 918 F.2d at 1099-1100,
and counsel does not argue that Navarro’s recollection of the
statements was so unreliable as to preclude admission under the
liberal standards governing these proceedings, see U.S.
Sentencing Guidelines Manual § 6A1.3(a) (“In resolving any
dispute concerning a factor important to the sentencing
determination, the court may consider relevant information
without regard to its admissibility under the rules of evidence
applicable at trial, provided that the information has sufficient
indicia of reliability to support its probable accuracy.”); see also

                                27
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. An equally plausible explanation of
the evidence, however, is 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




18 U.S.C. § 3661 (“No limitation shall be placed on the
information . . . which a court of the United States may receive
and consider for the purpose of imposing an appropriate
sentence.”); United States v. Paulino, 996 F.2d 1541, 1547 (3d
Cir. 1993) (“Prior to the Sentencing Guidelines, the principle
that sentencing judges could consider evidence at sentencing
that would not be admissible at trial was firmly established[,] . . .
subject to a due process standard of reliability.”). See also
United States v. Martinez, 413 F.3d 239, 243 (2d Cir. 2005)
(“Booker . . . provide[s] no basis to question prior Supreme
Court decisions that expressly approved the consideration of
out-of-court statements at sentencing.”), cert. denied, 126 S. Ct.
1086 (2006).

                                 28
reason, decided to fire the weapon skyward and withdraw from
the fight.

        The District Court was entitled to credit the latter version.
See, e.g., Coalition To Save Our Children v. Bd. of Educ., 90
F.3d 752, 759 (3d Cir. 1996). Despite defense counsel’s
protestations, and despite the absence of “direct” evidence that
Grier voluntarily produced the gun, see United States v. Bycer,
593 F.2d 549, 551 (3d Cir. 1979) (“The fact that evidence is
categorized as circumstantial does not make it less probative.”),
the testimony from Navarro could reasonably be interpreted as
showing that Grier purposefully pulled the firearm during the
fight and fired at Navarro with the intent to cause serious bodily
harm. This supports the conclusion that Grier committed
aggravated assault, warranting a four-level enhancement under
the Guidelines. See U.S. Sentencing Guidelines Manual
§ 2K2.1(b)(5).

       Grier’s other claims, that he has established self-defense
and that the offense should be classified as simple assault by
mutual consent, fail for similar reasons. Pennsylvania law
recognizes self-defense as a justification for a crime only if:

       (a) the actor was free from fault in provoking or
       continuing the difficulty which resulted in the use
       of deadly force; (b) the actor reasonably believed
       that he was in imminent danger of death or
       serious bodily injury and that there was a
       necessity to use such force in order to save
       himself or others; and (c) the actor did not violate
       any duty to retreat or to avoid the danger.

                                 29
Commonwealth v. Harris, 703 A.2d 441, 449 (Pa. 1997); see
also 18 Pa. Cons. Stat. § 505(b)(2) (“The use of deadly force is
not justifiable under this section unless the actor believes that
such force is necessary to protect himself against death[ or]
serious bodily injury . . . .”). Grier admittedly played a role in
starting the altercation by telling Navarro: “[L]et the problem
be right here and now.” And the record does not mandate a
finding that Grier believed that he was “in imminent danger of
death or serious bodily injury” during the fight, or that “there
was a necessity to use such force in order to save himself.” 7 See
Harris, 703 A.2d at 449. There is no reason, let alone a
compelling one, to conclude that the District Court erred in
refusing to recognize Grier’s claim of self-defense.

        Nor did the District Court err in declining to characterize
the crime as “simple assault by mutual consent.” This offense
is a lesser-graded version of simple assault, applicable when
both parties share equal responsibility for commencing the
underlying fight or scuffle. 18 Pa. Cons. Stat. § 2701(b)(1).
There is, however, no similar exception for aggravated assault.
See id. § 2702. The District Court’s finding that Grier had
committed aggravated assault rendered the mutual consent
provision inoperative.



       7
        At the time of the altercation, Grier was suffering from
migraines and other adverse effects of recent surgery to remove
a brain tumor; however, there is no evidence suggesting that
these conditions rendered Grier at risk of serious injury or death
from Navarro’s attack.

                                30
                                C.

       The final question in this case, and the ultimate inquiry
in the review of any sentence post-Booker, is whether the
sentence was “reasonable.” 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).8


       8
        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

                                31
Cooper, 437 F.3d at 329-32; see also Booker, 543 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.9 The
only explanation of the sentence provided by the District Court



      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).
       9
        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.
Cunnigham, 429 F.3d 673, 679 (7th Cir. 2005)). The
government does not argue in this case that Grier failed to
preserve his challenge to the sentence imposed by the District
Court.

                               32
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 those 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
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).

                                33
                               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 in this
case fell short of this goal. 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.

       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.




                               34
United States v. Sean Michael Grier, No. 05-1698




SLOVITER, Circuit Judge, dissenting.




        I respectfully dissent from the opinion of the majority.
In treating the finding of an aggravated assault as a sentencing
factor that may permissibly be used to enhance Grier’s
sentence, the majority has abrogated the Fifth Amendment of
the United States Constitution. The Supreme Court’s decision
in United States v. Booker, 543 U.S. 220 (2005), did not
discuss the Fifth Amendment nor did it suggest that it had no
role in sentencing: certainly the majority, as an inferior court,
has no authority to abnegate one of the most important, if not
the most important, of the rights that the Constitution assures
criminal defendants.




        The majority accomplishes this draconian move by
holding that a defendant’s sentence can be enhanced by a
District Court’s finding by a preponderance of the evidence
that the defendant committed a criminal offense, a finding
which, according to the majority, need not be submitted to a
jury. The majority states: “We will affirm the District Court’s
decision to apply the preponderance standard to all facts

                               35
relevant to the Guidelines, including the finding that Grier
committed aggravated assault under Pennsylvania law.” Maj.
Typescript Op. at 22. This holding turns constitutional
criminal procedure on its head.




                               I.




        Central to our consideration of Grier’s appeal from the
sentence imposed by the District Court following his guilty
plea to possession of a firearm by a convicted felon in
violation of 18 U.S.C. § 922(g)(1), is the effect of the recent
trilogy of opinions of the United States Supreme Court on
sentencing, United States v. Apprendi, 530 U.S. 466 (2000),
Blakely v. Washington, 542 U.S. 296 (2004), and United
States v. Booker, 543 U.S. 220 (2005),10 but primarily
Apprendi.




                              II.


       10
           U.S.S.G. § 2K2.1(b)(5) provides in relevant part that
“[i]f the defendant used or possessed any firearm or ammunition
in connection with another felony offense . . . increase by 4
levels.”


                              36
        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 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. This calculation was based on, inter alia, a
four-level enhancement pursuant to U.S.S.G. § 2K2.1(b)(5)
on the ground that Grier “used or possessed the firearm in
connection with another felony offense (aggravated assault).”
PSR, para. 14. The PSR stated that “[b]ecause [Grier] pled
guilty to a charge which has a maximum statutory penalty of
10 years . . . the guideline term is 120 months pursuant to
U.S.S.G. § 5G1.1(a).” PSR, para. 50. The PSR also noted
that without the four-level enhancement under § 2K2.1(b)(5)
the appropriate sentencing range would be 84 to 105 months
in prison.




       At the sentencing hearing held February 25, 2005,
which was after Booker was decided, the District Court,
treating the Sentencing Guidelines as advisory, adopted the
PSR which referred to the “other felony offense” as
“aggravated assault.” In determining that Grier had
committed that “other felony offense,” the District Court
expressly used the preponderance of the evidence standard,
made a downward departure under U.S.S.G. § 5K2.10
because the victim was partially responsible for the assault

                              37
that was the basis for the enhancement, and sentenced Grier to
100 months in prison, with three years of supervised release.
There can be no doubt, and the majority does not question,
that the PSR conclusion, adopted by the District Court, played
a role in Grier’s ultimate sentence.11




        On appeal, Grier contends that the District Court
committed two errors when it enhanced his sentence under §
2K2.1(b)(5). First, the District Court based the enhancement
on facts found by a preponderance of the evidence, rather than
beyond a reasonable doubt, in violation of Grier’s Fifth
Amendment right to due process of law. Second, Grier argues
that the record does not support a finding that he committed
an aggravated assault, regardless of what standard of proof is
used.12


       11
          Although the sentence Grier actually received
happened to fall within the statutory maximum and the
Guideline range of 84 to 105 months that would have been
applicable had there been no four-level enhancement, the
majority’s constitutional analysis does not depend on that fact,
nor could it following the decision in Blakely. See discussion
at page 14 infra.
       12
           Grier also contends that the District Court erred by
failing to articulate its consideration of the factors set forth in 18

                                 38
                              III.




        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 using the firearm, be found
beyond a reasonable doubt, is a question of law and is
therefore subject to plenary review.13 See United States v.
Williams, 235 F.3d 858, 861 (3d Cir. 2000). The District
Court’s findings of facts are reviewed for clear error. United
States v. Gibbs, 190 F.3d 188, 203 (3d Cir. 1999). I consider
first the changes in sentencing that have resulted from the
Supreme Court’s recent trilogy in Apprendi, Blakely, and



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.
       13
          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); 18 U.S.C. §
3742(a)(1).

                               39
Booker and then analyze Grier’s due process rights in the
context of this new sentencing regime.




A. The Impact of United States v. Booker




        The holdings of the two Booker opinions are by now
sufficiently reviewed that I need not dwell on them. The
Booker opinion authored by Justice Stevens for a majority of
five reaffirmed the holding in Apprendi that “[a]ny fact (other
than a prior conviction) which is necessary to support a
sentence exceeding the maximum authorized by the facts
established by a plea of guilty or a jury verdict must be
admitted by the defendant or proved to a jury beyond a
reasonable doubt” and extended that rule to the Sentencing
Guidelines. Booker, 543 U.S. at 244. In the opinion authored
by Justice Breyer, the Court severed and excised both the
provision of the Act that made the Guidelines mandatory, 18
U.S.C. § 3553(b)(1), and the provision that set forth standards
of review on appeal, 18 U.S.C. § 3742(e), Booker, 543 U.S. at
259-60, thereby transforming the Guidelines to advisory
guidelines for the information and use of the district courts in
whom discretion was now reinstated. The Court noted that
district courts do not have complete discretion, as they must
“consult those Guidelines and take them into account when
sentencing.” 543 U.S. at 264.



                              40
       In its interpretation of Booker, the majority states,
“Once an individual has been convicted by a jury beyond a
reasonable doubt of the predicate facts of illegal conduct,
triggering a statutory maximum penalty, a court may impose
any sentence on the individual up to that maximum. Judicial
factfinding in the course of selecting a sentence within the
permissible range does not implicate or offend the Fifth and
Sixth Amendment rights to a jury trial and proof beyond a
reasonable doubt.” Maj. Typescript Op. at 11. It later states,
“The excision of these provisions [making the Guidelines
mandatory and providing de novo review of departures]
rendered the Guidelines advisory, freeing the trial judge to
impose any sentence permitted under the United States Code
regardless of the sentence recommended by the Guidelines.”
Maj. Typescript Op. at 14-16.




       Both are overstatements. A finding of guilt of an
additional offense for purposes of increasing a defendant’s
sentence definitely “implicates” the Fifth Amendment.




        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

                              41
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 Fifth
Amendment rights or would violate the Fifth Amendment
rights of any criminal defendant similarly situated.




B. Fifth Amendment Due Process Rights at Sentencing




       A Fifth Amendment challenge, like the Fourteenth
Amendment challenge at issue in Apprendi, involves a
constitutional protection of “surpassing importance: the
proscription of any deprivation of liberty without ‘due process
of law.’” Apprendi, 530 U.S. at 476 (citation omitted).
Although the Constitution does not explicitly require that a
finding of guilt be made under a beyond-a-reasonable-doubt
standard, the Supreme Court has explicitly so 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).




                              42
        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 id. at 361 (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).




        The majority’s statement “[t]hat a defendant does not
enjoy the right to a jury trial ineluctably means that he or she
does not enjoy the right to proof beyond a reasonable doubt,”
Maj. Typescript Op. at 9, is simply wrong. That standard is as
equally applicable to a judge who sits as the trier of fact as to
a jury. Indeed, in In re Winship, the Court held that a
provision of the New York Family Court Act that authorized a
judge to determine by a preponderance of the evidence that a
juvenile was delinquent - that is, guilty of a crime - violated
the Fifth Amendment. Writing for the majority of the
Supreme Court which reversed 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.

                               43
        Justice Harlan, concurring, 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
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.




        He 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

                              44
process of placing on the other party the burden . . . of
persuading the factfinder at the conclusion of the trial of his
guilt beyond a reasonable doubt.’” Id. at 372 (quoting Speiser
v. Randall, 357 U.S. 513, 525-26 (1958)).




        The Due Process Clause of the Fifth Amendment with
its requirement of proof beyond a reasonable doubt is equally
applicable to issues in sentencing when the underlying
sentencing determination is dependent upon commission of an
offense and requires a finding of guilt or innocence. 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 were three
distinct offenses with three maximum penalties. See § 2119;
Jones, 526 U.S. 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 for carjacking if
serious bodily injury results, the penalty is a fine or
imprisonment of not more than 25 years or both; and
Subsection 3 provides that if death results, the penalty is a
fine or imprisonment for any number of years up to life or
both. The district court in Jones instructed the jury on
carjacking, but did not instruct on serious bodily injury, nor
was that pled in the indictment. Nonetheless, the district court
sentenced Jones to 25 years on the carjacking, finding by a
preponderance of the evidence that there was serious bodily
injury.

                              45
       When the case reached the Supreme Court, it 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 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 and suggests that its holding has no
relevance to the issue before us. I suggest that the majority
reread the text of section III of the Supreme Court’s opinion
in Jones. In support of its decision to read the carjacking
statute as treating the fact of bodily harm as an element of the
crime rather than a mere enhancement, the Court discussed at
some length the “‘grave and doubtful constitutional
questions’” that would arise were it to interpret the statute
otherwise. Id. at 239 (quoting U.S. ex rel. Attorney Gen. v.
Del. & Hudson Co., 213 U.S. 366, 408 (1909)). After citing
In re Winship, referred to above, the Court reviewed the
holdings in Mullaney v. Wilbur, 421 U.S. 684 (1975),
Patterson v. New York, 432 U.S. 197 (1970), and McMillan
v. Pennsylvania, 479 U.S. 79 (1986), focusing on the
constitutional issues they presented. Jones, 526 U.S. at 240-

                               46
42. In a footnote, the Jones 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).




       Further belying the majority’s disregard of the
significance of Jones are the following statements in the Jones
opinion:




              The question might well be less serious than the
       constitutional doubt rule requires if the history bearing
       on the Framers’ understanding of the Sixth
       Amendment principle demonstrated an accepted
       tolerance for exclusively judicial factfinding to peg
       penalty limits. But such is not the history . . . [S]everal
       studies demonstrate that on a general level the tension
       between jury powers and powers exclusively judicial
       would likely have been very much to the fore in the
       Framers’ conception of the jury right.



                               47
Id. at 244.14




       Jones, with its affirmation of the principle that due
process protections are required for offense-defining
elements, was followed by Apprendi, in which the Court
distinguished between sentencing factors which the district
court may find by a preponderance of the evidence and
consider 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. As to sentencing factors, the Court stated:




              We should be clear that nothing in this history
       suggests that it is impermissible for judges to exercise
       discretion - taking into consideration various factors
       relating both to the offense and offender - in imposing
       a judgment within the range prescribed by statute. We
       have often noted that judges in this country have long


       14
          The “constitutional doubt rule” referred to in the Jones
paragraph quoted above 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, 213 U.S. at 408).

                               48
       exercised discretion of this nature in imposing sentence
       within statutory limits in the individual case.




Apprendi, 530 U.S. at 481. The Court contrasted the
determinations of sentencing factors 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 stated that “[s]ince Winship, we have made
clear beyond peradventure that Winship’s due process and

                              49
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 entitled to the due process protections. Justice
Stevens, writing for the Apprendi majority, 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

                              50
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 United
States Supreme Court thus stated, “The question whether
Apprendi had a constitutional right to have a jury find such
bias on the basis of proof beyond a reasonable doubt is starkly
presented.” Id. at 475-76. The Court then quoted from the
opinion in United States v. Gaudin, 515 U.S. 506 (1995), 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. It quoted from a well-known
historical treatise:




       Where a statute annexes a higher degree of punishment
       to a common-law felony, if committed under particular
       circumstances, an indictment for the offence, in order

                              51
       to bring the defendant within that higher degree of
       punishment, must expressly charge it to have been
       committed under those circumstances, and must state
       the circumstances with certainty and precision.




Id. (quoting J. Archibold, Pleading & Evidence in Criminal
Cases, 51 (15 ed. 1862)).




        After that discussion, the Apprendi Court held that the
New Jersey statutory scheme, allowing a judge to make
findings 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. (“In light of
the constitutional rule . . . and all of the cases supporting it,
this practice cannot stand.”). The Hate Crime Enhancement
statute requires a particular criminal mens rea, and the Court
therefore 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:

                               52
       there is a vast difference between accepting the validity
       of a prior judgment of conviction entered in a
       proceeding in which the defendant had the right to a
       jury trial and the right to require the prosecutor to
       prove guilt beyond a reasonable doubt, and allowing
       the judge to find the required fact under a lesser
       standard of proof.




Id. at 496 (emphasis added).




        That statement alone is dispositive of this appeal.
Grier’s sentence was enhanced based on the District Judge’s
finding that he 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. Typescript Op. at 17. This, I respectfully state, is a non
sequitur.




C. Fifth Amendment Due Process rights Post-Apprendi

                                 53
        Grier contends that his Fifth Amendment due process
rights, as delineated in Winship, Jones, and Apprendi, were
violated when the judge found that he had committed

a separate felony offense which exposed him to a sentence of
120 months. At argument, the Government contended that
no Apprendi analysis is required in this case because Booker
marked a return to judicial discretion in sentencing, and the
ultimate sentence that Grier received was within the
sentencing range for the crime to which he pled guilty; as
noted previously, the range for his crime was 84-105 months
and he received a sentence of 100 months. The Government
also contended that because Booker did not explicitly require
that findings of fact relevant to sentencing be made under the
beyond-a-reasonable-doubt standard, findings of fact that
enhance a sentence need only be made by a preponderance of
the evidence. Lastly, the Government argued that the
Supreme Court’s decision in United States v. Watts, 519 U.S.
148 (1997), and this court’s own decision in United States v.
Miller, 417 F.3d 358 (3d Cir. 2005), held that Booker permits
factual finding relevant to sentencing to be made by a
preponderance of the evidence.




      This court’s decision in United States v. Williams, 235
F.3d 858 (3d Cir. 2000), arguably lends some support to the
Government’s contention that Grier’s case does not warrant
an Apprendi analysis. In that case, this court held that
Apprendi did not apply to a Guidelines sentence that was
below the statutory maximum even though we recognized that

                              54
the sentencing judge’s enhancement was based on facts not
proved beyond a reasonable doubt. “[W]e hold that Apprendi
does not apply to the increase in Williams’ sentence under the
Sentencing Guidelines.” Id. at 862; see also United States v.
Cepero, 224 F.3d 256, 267 n.5 (3d Cir. 2000) (en banc)
(“Because application of the Sentencing Guidelines in this
case does not implicate a fact that would increase the penalty
of a crime beyond the statutory maximum, the teachings of
[Apprendi] are not relevant here.”).




        The Williams court did not have the benefit of the
Supreme Court’s decisions in Blakely and Booker and
therefore its interpretation of Apprendi was too narrow.
Blakely applied the Court’s 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. See
note 2 supra. 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, raises an Apprendi issue.




                              55
        Grier’s sentence was based in part on the PSR which
concluded that Grier had committed an aggravated assault.15
Grier’s commission of an aggravated assault, vel non, is not
simply a sentencing factor, i.e. a fact enhancing the crime of
conviction, such as the vulnerability of the victim, the status
of the victim, the defendant’s role in the offense. See
U.S.S.G. § 3A.1. et seq. Rather, an aggravated assault
constitutes a separate crime under relevant state law. See,
e.g., 18 Pa. Cons. Stat. § 2702. The District Court’s
acceptance of the PSR’s finding that Grier committed
aggravated assault essentially penalized Grier for committing
a felony without a jury or judge determination that he
committed that crime beyond a reasonable doubt. As a result
of this finding, his sentencing range was increased from 84-
105 months to the statutory maximum of 120 months.




       In Apprendi the Court stated:


       15
          The PSR stated that Grier committed an aggravated
assault and Grier’s brief focuses on that finding. At the
sentencing hearing the Government argued that Grier committed
simple assault by physical menace, which constitutes a felony
under Pennsylvania law and would support application of the
four-level enhancement under U.S.S.G. § 2K2.1(b)(5). See 18
Pa. Cons. Stat. § 2701(a)(3). The District Court did not make a
finding as to whether Grier had committed a simple assault by
physical menace, but instead adopted the PSR. Accordingly, I
do not consider the Government’s argument on this point.

                              56
      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.




       Apprendi’s sentence was vacated because the
sentencing judge in that case found facts that constitute a
separate crime by a preponderance of evidence and that
finding increased the statutory maximum to which the
defendant was exposed. Grier’s situation is thus comparable
to Apprendi’s and the holding of the majority is directly
contrary to the reasoning in Apprendi.


                             57
       My view is consistent with that expressed in Justice
Thomas’ partial dissent in Booker, where he noted that “[t]he
commentary to § 6A1.3 states that ‘[t]he 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.’ The Court’s holding today
[in Booker] 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 (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.”).




       The Government contends that requiring proof beyond
a reasonable doubt for sentencing enhancements based on
facts constituting a separate crime is contrary to the Supreme
Court’s precedent in United States v. Watts, 519 U.S. 148
(1997). Watts held that a sentencing judge could consider
conduct underlying an acquitted charge. In Booker, Justice
Stevens characterized Watts as a case that “presented a very
narrow question regarding the interactions of the Guidelines
with the Double Jeopardy Clause, and did not even have the
benefit of full briefing or oral argument.” Booker, 543 U.S. at
240 n.4. He also noted that there was no contention in Watts

                              58
“that the sentencing enhancement had exceeded the sentence
authorized by the jury verdict[.]” Id. at 240. Because the key
issues in Watts are different both from those addressed by the
Court in Booker and from those Grier raises, I believe that
Watts is inapposite.




        According to the Government, requiring proof beyond
a reasonable doubt of facts underlying a sentencing
enhancement would contradict this court’s decision in Miller,
417 F.3d 358. In Miller, we considered judicial factfinding
after the Supreme Court’s pronouncements in Booker. We
observed that “[n]othing in Booker . . . necessarily calls into
question the correctness of the District Court’s factual
findings or procedural decisions at resentencing . . . . We
merely note that the District Court is free to engage in
precisely the same exercise in judicial fact finding as it did in
February 2003, so long as such fact finding is consistent with
Booker.” Id. at 362-63.




       There are clear differences between the issue before us
today and the issues faced by the Miller court. First, the
phrase from Miller quoted above is dictum and therefore does
not bind our decision here. Second, no Fifth Amendment Due
Process claims had been asserted by the defendants in Miller
and we did not have the opportunity to consider the arguments
that Grier raises. Therefore, Miller is inapposite.


                               59
        The cases cited by the majority as in accord with its
decision do not in fact so hold. Many of them are cases where
the issue was merely the amount of drugs, clearly a sentencing
factor after the defendant was found guilty or pled to the
underlying drug offense. See, e.g., United States v. Vaughn,
430 F.3d 518 (2d Cir. 2005), cert. denied sub nom. Lindo v.
United States, 126 S. Ct. 1665 (2006); United States v.
Morris, 429 F.3d 65 (4th Cir. 2005); United States v.
Magallanez, 408 F.3d 672 (10th Cir.), cert. denied, 126 S. Ct.
468 (2005); United States v. Duncan, 400 F.3d 1297 (11th
Cir.), cert. denied, 126 S. Ct. 432. There was no mention of
the Fifth Amendment in United States v. Pirani, 406 F.3d 543
(8th Cir.) (en banc), cert. denied, 126 S. Ct. 266 (2005). The
decision in United States v. Mares, 402 F.3d 511 (5th Cir.),
cert. denied, 126 S. Ct. 43 (2005), was based on the Sixth
Amendment, not the Fifth Amendment. None of the cases
cited by the majority focus on the issue that is the basis for
this dissent. In any event, if they did and were to hold
otherwise, I would believe that they were incorrectly decided.




        Accordingly, I respectfully dissent from the holding
that the District Court may enhance Grier’s sentence based on
its determination by a preponderance of the evidence, that
Grier committed an aggravated assault that was not admitted
nor submitted to a jury for determination by proof beyond a
reasonable doubt.




                             60
D. The District Court’s Findings of Fact




       Although I agree with the majority’s decision to
remand this case to the District Court for resentencing, I
respectfully dissent from the majority’s determination to
allow the District Court to reconsider its determination that
Grier committed an aggravated assault, as I believe that
finding was clearly erroneous.




        Even if the majority were convincing that the
appropriate standard of proof is preponderance of the
evidence the District Court erred in finding that Grier
committed an aggravated assault. United States v. Gibbs, 190
F.3d 188, 197 (3d Cir. 1999). 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 U.S.S.G. § 2K2.1(b)(5)
because it does not meet the requirements 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.




                              61
        The evidence at the sentencing hearing consisted only
of the testimony from Juan Navarro, the brother of Grier’s
girlfriend, with whom he engaged in the altercation that
constituted the basis for the finding of aggravated assault.
Navarro testified that he “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.




       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

                               62
me that he was taking the gun out. And from there, that’s
when everybody tried to get the gun away from me.” App. at
57; Tr. at 16, l. 3.




       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).
“Simple 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.




       Self-defense is an affirmative defense, and forms a
complete defense under Pennsylvania law “when the actor
believes that such force is immediately necessary for the
purpose of protecting himself against the use of unlawful

                              63
force by the other person.” Commonwealth v. Gray, 867 A.2d
560, 568 (Pa. Super. Ct. 2005) (internal quotation and citation
omitted). A person is only entitled to use that force which is
reasonably necessary to protect himself. See Commonwealth
v. Harvey, 812 A.2d 1190, 1996 (Pa. 2002). The use of
deadly force is not permissible unless “the actor believes that
such force is necessary to protect himself against death,
serious bodily injury, kidnapping or sexual intercourse
compelled by force or threat.” 18 Pa. Cons. Stat. § 505(b)(2).




        In this case, there is no evidence that Grier used deadly
force because the evidence does not show that he ever fired
the gun at Navarro. Rather, the evidence was that he pointed
the gun at Navarro and then fired it in the air in order to end
the fight. 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. There is
evidence that the gun discharged accidentally as a result of the
struggle with Navarro and bystanders. Grier uttered no
threats and appeared to use the gun only as a means of
warding off a further attack and ending the struggle. The
record contains ample evidence that Navarro was the
aggressor and that Grier was acting only in self-defense.




       The majority contends:



                                64
       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. An equally
       plausible explanation of the evidence, however, is 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. Typescript Op. at 28-29.




       By stating that it is “equally plausible” that Grier fired
at Navarro as that the gun fell out of his pocket accidentally,
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. Preponderance requires
more than plausibility.




        The Pennsylvania statute defines aggravated assault in
the alternative - the defendant must have attempted to or
intentionally caused bodily injury with a deadly weapon.

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There is no suggestion that Grier actually injured Navarro
with the gun. Therefore, the predicate for the District Court’s
conclusion that Grier committed an aggravated assault by a
preponderance of the evidence must have been 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. When Grier stepped away from
Navarro and fired a shot in the air he was seeking to end the
fight–firing in the air is not a mysterious gesture as the
majority chooses to portray it, but can fairly be described as a
universally understood gesture of detente or warning. In fact,
state charges filed against Grier after the incident were
dismissed.




       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 his 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 argues that the
“mutual consent” exception does not exist for aggravated
assault, but ignores the fact that under Pennsylvania law,
simply pointing a gun at someone without firing it is not an

                               66
aggravated assault, but a simple assault by physical menace,
to which the mutual consent exception does apply. See
Commonwealth v. Matthews, 870 A.2d 924, 929 (Pa. Super.
2005); 18 Pa. Cons. Stat. § 2701(a)(3). The majority also
strains to avoid the effect of Grier’s recent brain surgery on
the reasonableness of his self-defense claim. It may be that
Grier reasonably believed he was at particular risk of
incurring a life-threatening injury during a fistfight, but this is
a question that should be examined by the District Court in
the first instance.




        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. But the majority ignores 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)).




      Because I believe that the District Court’s
enhancement of Grier’s sentence based on a finding that he
committed aggravated assault is wholly unsupported by the


                                67
record under any standard, I would remand with instructions
to resentence without the enhancement.




                              IV.




        For the foregoing reasons, I dissent both from the
Court’s holding that the proper standard of proof for a
sentencing enhancement based on a finding of guilt of an
underlying offense is a preponderance of the evidence and
from its remand that in effect permits the court to reconsider
the issue of aggravated assault because it is unsupported by
the evidence.




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