                                                                                                                           Opinions of the United
1994 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-22-1994

Wilmer v. Johnson
Precedential or Non-Precedential:

Docket 93-1283




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          UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT

                __________________

                   No. 93-1283
                __________________


     JOSEPH WILMER, UNITED STATES OF AMERICA,
                     EX. REL.,

                                 Appellant
                         v.

       NATHANIEL JOHNSON, DIRECTOR, PRETRIAL
      SERVICES DIVISION OF PHILADELPHIA COURT
      OF COMMON PLEAS; THE DISTRICT ATTORNEY
       FOR PHILADELPHIA COUNTY; THE ATTORNEY
       GENERAL OF THE STATE OF PENNSYLVANIA


____________________________________________________

   On Appeal From the United States District Court
      for the Eastern District of Pennsylvania
              (D.C. Civil No. 92-06899)
____________________________________________________


     Submitted Under Third Circuit LAR 34.1(a)
                   April 20, 1994

Before:   BECKER, NYGAARD and WEIS, Circuit Judges.

              (Filed   July 22, l994 )


                         PETER ROSALSKY
                         Defender Association of
                         Philadelphia
                         121 North Broad Street
                         Philadelphia, PA   19107

                              Attorney for Appellant


                         DEBORAH FLEISHER
                         Assistant District Attorney


                         1
DONNA G. ZUCKER
Chief, Federal Litigation




2
                                  RONALD EISENBERG
                                  Deputy District Attorney
                                  Law Division
                                  ARNOLD H. GORDON
                                  Chief Deputy District Attorney
                                  LYNNE ABRAHAM
                                  District Attorney
                                  1421 Arch Street
                                  Philadelphia, PA 19102-1582

                                       Attorneys for Appellees


                      ___________________________

                         OPINION OF THE COURT
                      ___________________________


BECKER, Circuit Judge.


          This appeal from an order of the district court

dismissing a petition for writ of habeas corpus presents the

question whether the Double Jeopardy Clause of the Fifth

Amendment to the United States Constitution, as applied through

the Fourteenth Amendment, prohibits an enhanced sentence in a

state resentencing proceeding brought pursuant to Pennsylvania's

Drug Trafficking Mandatory Minimum Sentencing Statute, 18

Pa.Cons.Stat.Ann. § 7508 (1990), after the initial sentence was

reversed on appeal.    Resolution of this issue requires us to

decide which of two arguably controlling Supreme Court decisions

determines the outcome.    In Bullington v. Missouri, 451 U.S. 430,

101 S.Ct. 1852 (1981), the Supreme Court held that the Double

Jeopardy Clause precluded the state from seeking the death

penalty at a second capital sentencing proceeding after the

defendant's first jury declined to impose such a penalty.    In


                                  3
contrast, in United States v. DiFrancesco, 449 U.S. 117, 101

S.Ct. 426 (1980), the Court found no violation of the Double

Jeopardy Clause resulting from a sentence enhancement under

former 18 U.S.C. § 3576 following appellate review in a

noncapital case.    We conclude that DiFrancesco is controlling and

hold that the Double Jeopardy Clause does not bar the

Pennsylvania proceeding at issue.     We therefore affirm the order

of the district court dismissing the habeas corpus petition.



                                 I.

            Petitioner, Joseph Wilmer, was convicted following a

bench trial in the Court of Common Pleas of Philadelphia County

of possessing crack cocaine with intent to deliver.     Wilmer had

been found with 61 clear plastic vials with orange caps

containing an off-white substance.      Two of the vials were

analyzed by the Commonwealth's chemist and found to contain

cocaine, 37 and 43 milligrams respectively.0     The Commonwealth

timely notified Wilmer of its intent to proceed under the

mandatory sentencing provisions of 18 Pa.Cons.Stat.Ann. § 7508,

Pennsylvania's Drug Trafficking Mandatory Minimum Sentencing

Statute.0
0
 The specific amount of cocaine found in the two tested vials was
brought out at the trial rather than at the sentencing hearing.
0
 Before the 1990 amendments, Section 7508 provided in relevant
part, as follows:

            (a) General rule. -- Notwithstanding any other
            provisions of this or any other act to the contrary,
            the following provisions shall apply:

                                * * *


                                 4
          At a sentencing hearing on April 5, 1990, the issue was

whether petitioner was subject to § 7508(a)(3)(i), which provided

for a mandatory minimum sentence of one year and a $5,000 fine



               (3) A person who is convicted of violating section
          13(a)(14) or (30) of The Controlled Substance, Drug,
          Device and Cosmetic Act where the controlled substance
          is coca leaves or is any salt, compound, derivative or
          preparation of coca leaves . . . shall, upon
          conviction, be sentenced to a mandatory minimum term of
          imprisonment and a fine as set forth in this
          subsection:

               (i) upon the first conviction when the amount of
          the substance involved is at least 2.0 grams and less
          than ten grams; one year in prison and a fine of $5,000
          or such larger amount as is sufficient to exhaust the
          assets utilized in and the proceeds from the illegal
          activity . . . ;

                              * * *

          (b) Proof of sentencing. -- Provisions of this section
          shall not be an element of the crime. Notice of the
          applicability of this section to the defendant shall
          not be required prior to conviction, but reasonable
          notice of the Commonwealth's intention to proceed under
          this section shall be provided after conviction and
          before sentencing. The applicability of this section
          shall be determined at sentencing. The Court shall
          consider evidence presented at trial, shall afford the
          Commonwealth and the defendant an opportunity to
          present necessary additional evidence and shall
          determine, by a preponderance of the evidence, if this
          section is applicable.

                              * * *

          (d) Appellate review. -- If a sentencing court refuses
          to apply this section where applicable, the
          Commonwealth shall have the right to appellate review
          of the action of the sentencing court. The appellate
          court shall vacate the sentence and remand the case to
          the sentencing court for imposition of a sentence in
          accordance with this section if it finds that the
          sentence was imposed in violation of this section.


                               5
when "the amount of the substance involved is at least 2.0 grams

and less than ten grams."0   The evidence presented at the

sentencing hearing (established through stipulation) showed that

the aggregate weight of the substance when the contents of the

sixty-one vials were mixed was 2.6 grams.      The state did not show

what portion of the 2.6 grams was actually cocaine as opposed to

a non-cocaine substance used to dilute the mixture.0

          The trial court held that the Commonwealth had not

proved by a preponderance of the evidence that the amount of

cocaine involved was 2.0 grams.       Only 2 of 61 vials had been

analyzed, and the amount of cocaine discovered in these two

vials, in the court's view, did not justify an extrapolation to

2.0 grams of cocaine in the 61 vials.       The court therefore

refused to apply § 7508(a)(3)(i) and instead sentenced Wilmer to

9 to 18 months confinement to be followed by one year of

probation.   The Commonwealth appealed the sentence pursuant to

§7508(d), which authorizes an appeal by the Commonwealth when the

sentencing court fails to apply the mandatory minimum sentence

required by that statute.    The Pennsylvania Superior Court

reversed and remanded the case for imposition of the more severe

0
 On December 19, 1990, the Pennsylvania Legislature amended this
section to make the mandatory minimum depend not just on the
amount of substance involved but rather the aggregate
weight of the compound or mixture. The amended provision now
reads: "when the aggregate weight of the compound or mixture
containing the substance involved is at least 2.0 grams and less
than ten grams . . . ." 18 Pa.Cons.Stat.Ann. § 7508 (Supp. 1993)
(emphasis added). The amendment has no applicability to this
appeal.
0
 The total amount of cocaine in the two analyzed vials had been
shown only to be eighty milligrams.


                                  6
sentence, holding that the sampling of only 2 of 61 vials was

adequate to support the extrapolation.   Wilmer's request for

allocatur was denied by the Pennsylvania Supreme Court.

          On December 2, 1992, Wilmer filed a petition for a writ

of habeas corpus in the District Court for the Eastern District

of Pennsylvania.   The sole claim raised was the alleged

impingement of the constitutional right not to be placed twice in

jeopardy by reason of being subjected to a second sentence

enhancement proceeding under 18 Pa.Cons.Stat.Ann. § 7508.

Respondents0 answered the petition, addressing its merits.0     The

district court dismissed the petition, and this appeal followed.

          On June 10, 1993, a motions panel of this court granted

Wilmer's request for a certificate of probable cause to appeal

and appointed counsel.   After briefs were filed, the Supreme

Court granted certiorari in Caspari v. Bohlen, 113 S.Ct. 2958

(1993), which presented an issue virtually identical to this

appeal.   This (merits) panel stayed the appeal pending the

outcome of Caspari v. Bohlen, 114 S.Ct. 948 (1994).   We then

requested and received supplemental briefing on Caspari's impact

on the case.0



                               II.

0
 Respondents are as follows: (1) Nathaniel Johnson, Director,
Pretrial Services Division of Philadelphia Court of Common Pleas;
(2) the District Attorney for Philadelphia County; and (3) the
Attorney General of the State of Pennsylvania.
0
 The respondents properly conceded that petitioner had exhausted
his state remedies under 28 U.S.C. § 2254(b).
0
 Wilmer has represented that the state trial court has continued
the resentencing pending the outcome of this appeal.


                                7
          We must initially determine whether the Supreme Court's

decision in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060

(1989)(plurality opinion), bars consideration of the double

jeopardy issue.   Under Teague, a federal court is precluded from

"granting habeas corpus relief to a state prisoner based on a

[new] rule announced after his conviction and sentence became

final."   Caspari v. Bohlen, 114 S.Ct. at 953 (citation omitted).

The Teague analysis is ordinarily the first step when reviewing a

federal habeas case.   Schiro v. Farley, 114 S.Ct. 783, 788

(1994).   The rule, however, is not jurisdictional, and "a federal

court may, but need not, decline to apply Teague if the State

does not argue it."    Caspari, 114 S.Ct. at 953.

           In this case, respondents failed to raise a Teague

argument in the district court or in their brief on appeal.      The

issue was not raised until we, sua sponte, requested supplemental

briefs addressing the nonretroactivity principle.    Not

surprisingly, the respondents now argue that Teague forecloses

any habeas relief.    Relying primarily on the Supreme Court's

recent opinion in Caspari, they contend that Wilmer's double

jeopardy argument, if accepted, would constitute a new rule which

cannot be applied retroactively in a collateral proceeding.0



0
 A state conviction and sentence become final for the purpose of
retroactivity analysis when the availability of direct appeal to
the state courts has been exhausted and the time for filing a
timely petition for a writ of certiorari has elapsed. Caspari,
114 S.Ct. at 953. Wilmer's sentence became final on December 17,
1992, ninety days after September 19, 1992, the date the
Pennsylvania Supreme Court denied the petition for allocatur and
he did not petition the Supreme Court for certiorari.


                                 8
          The respondents' argument has obvious force.    In

Caspari, the habeas petitioner claimed that the Double Jeopardy

Clause prohibited the state from subjecting him to successive

noncapital sentence enhancement proceedings.   The State argued,

as it had in the lower courts and in its brief on the merits,

that the nonretroactivity principle articulated in Teague barred

the relief sought by the petitioner.    Agreeing with the state,

the Supreme Court declined to address the merits of the double

jeopardy claim.   Instead, the Court held that granting the

petitioner's request for relief "required the announcement and

application of a new rule of constitutional law."   Id. at 957.

The Court found that "neither of the two narrow exceptions to the

nonretroactivity principle applie[d] to the case," since the "new

rule" was neither the type that placed "certain kinds of primary,

private individual conduct beyond the power of the criminal law-

making authority to proscribe" nor a "watershed rule[] of

criminal procedure implicating the fundamental fairness and

accuracy of the criminal proceeding."    Id. at 956 (quotations and

citations omitted).

          Recognizing the similarity between Caspari and the
instant appeal, we nonetheless find the cases distinguishable. In

Caspari, the State properly raised the Teague issue in the lower

courts.   Consequently, the Court held that it "must apply Teague

before considering the merits of the claim."   Id. at 953

(citation omitted).   The respondents here did not assert the

Teague rule until we identified the issue and requested
supplemental briefing.   However, the appropriate time for arguing


                                9
that Teague barred consideration of petitioner's double jeopardy

claim was in the answer to the habeas petition and not in a

supplemental brief requested by the court on appeal.    The

respondents should have been aware of the Teague defense, since

Teague was decided prior to Wilmer's filing of his habeas

petition.   See Hanrahan v. Greer, 896 F.2d 241, 245 (7th Cir.

1990)("Disputes about the retroactive application of

constitutional decisions have pervaded criminal procedure over

the last 25 years.").   Moreover, in Wilmer's memorandum in

support of his petition for a writ of habeas corpus, he argued at

length the applicability of the Eighth Circuit's decision in

Bohlen v. Caspari, 979 F.2d 109 (1992), which begins with a

discussion of Teague.

            We hold that respondents' failure to raise the issue in

the district court constitutes a waiver of any Teague defense.

Schiro, 114 S.Ct. at 788-89.     Although we have the discretion to

reach the State's Teague defense sua sponte, id. at 789, we

decline to do so in this case.    In this respect we follow the

lead of the Court of Appeals for the Seventh Circuit in Hanrahan,

which declined to address the Teague question sua sponte, noting
that the court need not go into a Teague analysis where the state

failed to preserve an objection in the district court to the

retroactive application of a new rule.    896 F.2d at 245.    We

therefore turn to the merits.



                                 III.



                                 10
            "It is well established that the Double Jeopardy Clause

forbids the retrial of a defendant who has been acquitted of the

crime charged."    Bullington, 451 U.S. at 437, 101 S.Ct. at 1857

(citations omitted).0    Following an acquittal, the state cannot

obtain a new trial by means of an appeal even though the

acquittal appears to be in error.      Green v. United States, 355

U.S. 184, 187-88, 78 S.Ct. 221, 223-24 (1957).      It sometimes has

been explained that the prosecution gets one fair opportunity to

present whatever evidence it can muster, and failing in this

effort, does not deserve a second opportunity to establish guilt.

Burks v. United States, 437 U.S. 1, 16-17, 98 S.Ct. 2141, 2149-50

(1978).

            The Supreme Court traditionally has refused to extend

the Double Jeopardy Clause to sentencing.      Caspari, 114 S.Ct. at

955.    "The imposition of a particular sentence usually is not

regarded as an `acquittal' of any more severe sentence that could

have been imposed."     Bullington, 451 U.S. at 438, 101 S.Ct. at

1857.     First, "a sentence does not have the qualities of

constitutional finality that attend an acquittal."     DiFrancesco,

449 U.S. at 134, 101 S.Ct. at 436.      Second, noncapital sentencing

procedures generally do not have the hallmarks of a trial on

guilt or innocence.     Bullington, 451 U.S. at 438, 101 S.Ct. at
1858.




0
 The Double Jeopardy Clause is made applicable to the states
through the Fourteenth Amendment. Benton v. Maryland, 395 U.S.
784, 89 S.Ct. 2056 (1969).


                                  11
            In DiFrancesco, a case involving a statute similar to

the one at issue in this appeal, the defendant was convicted in

federal court of violating the Organized Crime Control Act of

1970, 18 U.S.C. § 3575, a statute predating the United States

Sentencing Guidelines.   Section 3575 provided for an increased

sentence upon proof at a sentencing hearing that the convicted

defendant was a "dangerous special offender."    After the

defendant was found guilty of the racketeering counts, a

dangerous special offender hearing was held.    The district court

made findings of fact and ruled that the defendant was a

dangerous special offender within the meaning of § 3575, but the

court's sentence resulted only in one additional year of

imprisonment beyond that which the defendant had received on the

racketeering counts.

            Section 3576 of Title 18 provided for an appeal by the

government to correct a sentence imposed after § 3575

proceedings.   The government appealed, claiming that the district

court had abused its discretion in imposing such a lenient

sentence.   The court of appeals rejected the government's

position, concluding that the risk of substitution of a greater

sentence upon an appeal by the government under § 3576 violated

the Double Jeopardy Clause.   The Supreme Court reversed, holding

that the increase of a sentence on review under 18 U.S.C. § 3576

did not violate the Double Jeopardy Clause.     Specifically, the

Court rejected the contention that the imposition of a sentence

under that statute constituted an acquittal of a more serious

sentence that could have been imposed, because a defendant had no

                                 12
expectation of finality until the statutory appeal process was

completed.

             In contrast, in Bullington, a capital case, the Court

carved out an exception to the general rule that the Double

Jeopardy Clause does not apply in the sentencing context.0    The

Court held that the state could not seek the death penalty at a

second capital sentencing hearing without violating the Double

Jeopardy Clause where the defendant's first jury had declined to

impose that penalty.    See also Arizona v. Rumsey, 467 U.S. 203,

104 S.Ct. 2305 (1984) (expanding Bullington to include cases

where a judge determines the sentence in a capital sentencing

proceeding).     Although the Court reaffirmed the general rule that

the Double Jeopardy Clause does not prohibit imposing a harsher

sentence upon retrial, it held that a capital sentencing hearing

is not a typical discretionary sentencing hearing.     It noted that

under Missouri law the prosecution in a capital sentencing

hearing does not merely recommend a sentence, but undertakes the

0
 At issue in Bullington was the Missouri death penalty statute,
which provided for a separate sentencing proceeding at which the
prosecution had to prove the existence of an aggravating
circumstance beyond a reasonable doubt. At the guilt phase of
the defendant's trial, the jury returned a verdict of guilty of
capital murder. At the sentencing hearing, the jury returned a
verdict fixing the defendant's punishment at life in prison
without the possibility of parole. The defendant appealed his
conviction and won a new trial on a jury fair cross-section of
the community claim. The state then served notice that it would
again seek the death penalty on retrial. A defense motion to
strike the notice, grounded in the Double Jeopardy Clause, was
granted. Following an appeal to the Missouri Supreme Court, the
United States Supreme Court granted certiorari "in order to
consider the important issues raised by petitioner regarding the
administration of the death penalty (footnote omitted)."
Bullington, 451 U.S. at 437, 101 S.Ct. at 1857.


                                  13
burden of proving certain facts beyond a reasonable doubt in an

effort to obtain the harshest sentence.   The sentencer's

discretion also is severely cabined because the sentencer is

limited to the choice between life and death.

          More importantly for this case, the Bullington court

distinguished DiFrancesco as follows:

          In only one prior case, United States v.
          DiFrancesco, has this Court considered a
          separate or bifurcated sentencing procedure
          at which it was necessary for the prosecution
          to prove additional facts. The federal
          statute under consideration there, the
          "dangerous special offender" provision of the
          Organized Crime Control Act of 1970, 18
          U.S.C. §§ 3575 and 3576, requires a separate
          presentence hearing. The Government must
          prove the additional fact that the defendant
          is a "dangerous special offender," as defined
          in the statute, in order for the court to
          impose an enhanced sentence. But there are
          highly pertinent differences between the
          Missouri procedures controlling the present
          case and those found constitutional in
          DiFrancesco . . . .


451 U.S. at 440, 101 S.Ct. at 1859.
          The Court went on to discuss the important procedural

differences between Missouri's death penalty statute and the

federal dangerous special offender statute.   They included that

the federal judge has a number of sentencing choices under 18

U.S.C. § 3575, whereas a Missouri jury must choose between life

and death, and that the government in a § 3575 proceeding need

only prove that the defendant is a dangerous offender by a

preponderance of the evidence, whereas the state in a capital

sentencing proceeding must prove the existence of an aggravating


                               14
circumstance beyond a reasonable doubt.   Id. at 440-41, 101 S.Ct.

at 1859.   The Court also noted that the statute at issue in

DiFrancesco expressly provided for appellate review of a sentence

on the record of the sentencing court.    Id.   In essence, the

Court saw the sentencing determination in Bullington as

constituting an acquittal for lack of evidence.    By necessary

implication, the sentencing determination in DiFrancesco was not

an "acquittal" because, given the more lax procedures used at the

sentencing hearing, it was not a trial-like proceeding.



                               IV.

           Against this background, we turn to Wilmer's double

jeopardy claim as it relates to a resentencing proceeding under

18 Pa.Cons.Stat.Ann. § 7508.   Wilmer argues that the

constitutional protection against double jeopardy bars

resentencing in his case.   Specifically, he claims that the state

trial court "acquitted" him of the § 7508 mandatory sentence in a

sentencing proceeding that was more like a trial on the issue of

guilt than a typical discretionary sentencing hearing.    Wilmer

grounds his argument on the Supreme Court's opinions in

Bullington and Rumsey.

           After reviewing the relevant case law and the state

statute at issue in this appeal, we reject petitioner's argument.

We are satisfied that the Double Jeopardy Clause does not

prohibit an enhanced sentence in a state resentencing proceeding

brought pursuant to 18 Pa.Cons.Stat.Ann. § 7508.    First, we draw

instruction from the Supreme Court's decision in DiFrancesco. The

                                15
statute at issue there specifically provided that the sentence

was subject to appeal.   The Court found that under such

circumstances the defendant "is charged with knowledge of the

statute and its appeal provisions, and has no expectation of

finality in his sentence until the appeal is concluded or the

time to appeal has expired."   Id. at 136, 101 S.Ct. at 437.     Like

the defendant in DiFrancesco, Wilmer had notice of Pennsylvania's

mandatory sentencing statute and its appeal provisions.     Section

7508(d) expressly states that the Commonwealth "shall have the

right to appellate review of the action of the sentencing court."

Thus, the petitioner had no expectation of finality in his

sentence until the Commonwealth's appeal was concluded or the

time for appeal had expired.

          In DiFrancesco, the Court also noted the human

considerations that bar a prosecution after an acquittal.      Id. at

136, 101 S.Ct. at 437.   For example, the defendant will be

subjected to anxiety and insecurity and the possibility that he

or she may be found guilty even though innocent.   The Court

opined that those considerations have no significant application

to the prosecution's statutory right to have a sentence reviewed

because the limited appeal and subsequent resentencing does not

approximate the ordeal of a trial on the basic issue of guilt or

innocence.   Id.
          Like DiFrancesco, the resentencing proceeding under

§7508 will not subject the petitioner to a second trial.    As we

read the opinion of the Pennsylvania Superior Court, on remand

the trial court has no choice but to impose the appropriate

                                16
mandatory minimum sentence set out in § 7508; no further trial-

like proceedings appear necessary.     Indeed, from our reading of

§7508(d), it does not appear that further proceedings would ever

be required on resentencing where a trial court refused to impose

the mandatory minimum sentence.    See, e.g., Commonwealth v.

Jones, 413 Pa. Super. 482, 605 A.2d 825, appeal denied, 531 Pa.

652, 613 A.2d 557 (1992); Commonwealth v. Logan, 404 Pa. Super.

100, 590 A.2d 300, appeal denied, 528 Pa. 622, 597 A.2d 1151

(1991); Commonwealth v. Brown, 389 Pa. Super. 66, 566 A.2d 619

(1989).    But even if additional proceedings were necessary, the

Commonwealth would do nothing more than offer a chemical analysis

of the entire mixture0 to show that the two vials that were

tested really were representative of the entire population of

vials.

            The prosecution's burden of proof under § 7508 also

suggests that the sentencing proceeding does not resemble a

trial.    Pursuant to § 7508(b), the trial court invokes the

mandatory sentencing statute if it determines by a preponderance

of the evidence that the section applies.     This standard, which

is the same standard involved in DiFrancesco, "stands in contrast
to the reasonable-doubt standard" at issue in Bullington, 451

U.S. at 441, 101 S.Ct. at 1859.

            In light of the caselaw, the standard of proof required

at sentencing proceedings is certainly a factor in determining


0
 As we read the record, after the two vials were tested, the
contents of all 61 vials were dumped together and weighed. Thus,
testing of additional vials would no longer be possible.


                                  17
whether the imposition of one sentence constitutes an acquittal

of another.    More precisely, the use at a sentencing hearing of a

preponderance of the evidence standard of proof rather than the

traditional beyond a reasonable doubt standard is significant.

See Bullington, 451 U.S. at 440-41, 101 S.Ct. at 1859.    The lower

standard of proof signifies a more lax procedure which in turn

signifies that a hearing is not, in the Bullington calculus,

trial-like.    DiFrancesco, 449 U.S. at 118-19 n.1, 101 S.Ct. at

427-28 n.1.0

           We also draw instruction from the Supreme Court's

decision in Caspari where it stated, albeit in dictum, that, had

it decided the broader question of whether the Double Jeopardy

Clause bars an enhanced sentence in noncapital cases, it would

have limited Bullington and Rumsey to the capital sentencing

context.   The Court stated that "[b]oth Bullington and Rumsey

were capital cases, and our reasoning in those cases was based

largely on the unique circumstances of a capital sentencing

proceeding."    Caspari, 114 S.Ct. at 954.   The Court explained

that its prior decisions "clearly establish that a sentenc[ing in

a noncapital case] does not have the qualities of constitutional


0
 We use the phrase "Bullington calculus" advisedly. We are
acutely aware that the sentencing proceedings with which federal
judges regularly deal these days are driven by facts that are
often developed in extensive sentencing hearings. While these
may sometimes feel trial-like, they differ markedly from actual
trials, see generally Edward R. Becker, Insuring Reliable Fact
Finding in Guidelines Sentencing: Must the Guarantees of the
Confrontation and Due Process Clauses Be Applied?, 22
Cap.U.L.Rev. 1 (1993), and, at all events, are not trial-like
within the "Bullington calculus."


                                 18
finality that attend an acquittal."    Id. at 955 (citations and

quotations omitted).

          We have previously considered a double jeopardy

challenge to a statutory scheme designed, as is Pennsylvania's

here, to reduce the discretion of the sentencer by providing for

a government appeal of an improper sentence.    In United States v.

McMillen, 917 F.2d 773 (3d Cir. 1990), the government appealed a

sentence imposed under the United States Sentencing Guidelines

after the defendant had started serving the sentence, arguing

that the district court had erred in not adjusting the sentence

upward pursuant to § 3B1.3.     This Court agreed and remanded for

an increased sentence.     In doing so, we rejected the argument

that the government's appeal violated the Double Jeopardy Clause.

          Relying on DiFrancesco, we explained that the

prohibition against double jeopardy is not implicated where a

statute specifically provides for the government to obtain

appellate review.    We noted that Congress had provided the

government with the means to appeal an incorrect application of

the federal sentencing guidelines in 18 U.S.C. § 3742(b).        Id. at

776-777 & n.6.    Thus, the defendant was charged with the

knowledge that the government could appeal and had no expectation

of finality until the appeal was concluded or the time for appeal

had expired.     We see no real difference between the federal

government's right to have an enhanced sentence meted out at a

subsequent sentencing proceeding under the Guidelines and the

circumstances presented by this appeal.



                                  19
                                V.

          In sum, we do not think that double jeopardy protection

attaches to sentencing proceedings under § 7508.    The statute

expressly grants the state the right to appeal a sentencing

determination; thus, the petitioner did not have a reasonable

expectation of finality in the original sentence.   Moreover, the

sentencing proceedings are not, within the Bullington calculus,

so trial-like as to implicate the Double Jeopardy Clause.       Here,

the Commonwealth made only the showing it had to make under the

preponderance of the evidence standard.   The petitioner offered

nothing in rebuttal.   In fact, at the actual hearing, all that

happened in terms of presentation of evidence was that the

parties stipulated to a single fact -- the total weight of the

substance.   We fail to see how this resembles a trial.   See

DiFrancesco, 449 U.S. at 124, 101 S.Ct. at 430.

          The order of the district court denying Wilmer's

petition for a writ of habeas corpus will be affirmed.




                                20
