The Supreme Court held in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), that facts relevant to the advisory United States Sentencing Guidelines need not be submitted to a jury. We now confirm that these facts likewise do not require proof beyond a reasonable doubt.

It all started with a lost bicycle. The bike was owned by Juan Navarro but had been commandeered by his sister. She was holding it, with the support of her boyfriend, Sean Michael Grier, as a form of security against Navarro's promise to pay a cable bill. Navarro did not approve of this arrangement.

He confronted Grier and demanded the bike. Grier refused. Navarro said: "[T]here's gonna be some problems if I don't have my bike back." Grier responded: "[L]et the problem be right here and now."

Navarro swung at Grier. The punch did not connect, and the two men fell struggling to the ground. Several witnesses warned Navarro that Grier had a gun. A shot was fired. When the two men separated, Grier was holding a gun. Neither had been struck by the bullet or sustained serious injury.

Grier pointed the gun at Navarro. Navarro attempted to rush at Grier but was held back by other individuals. Grier pointed the gun upward and fired a single shot. Both men then left the scene. Grier discarded the firearm in a nearby trash can.

A police investigation ensued. Officers found the discarded gun, and a background check revealed that it had been stolen. Grier was soon arrested on state charges of aggravated assault, receiving stolen property, and unlawful possession of a firearm. These counts were dismissed in August 2003.

Grier was subsequently charged by federal indictment with possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1), and possession of a stolen firearm, in violation of 18 U.S.C. § 922(j). He pled guilty to the first count; the second count was dismissed pursuant to a plea agreement.

A presentence report was prepared. It assessed a four-level enhancement pursuant to § 2K2.1(b)(5) as Grier used the firearm in connection with another felony offense,1 namely an aggravated assault under Pennsylvania law. See 18 Pa. Cons. Stat. § 2702.2 This finding resulted in a four-level enhancement in Grier's offense level under the United States Sentencing Guidelines, raising it from 23 to 27, see U.S. Sentencing Guidelines Manual § 2K2. 1(b)(5), and a fifty percent increase in the recommended imprisonment range, raising it from 84 to 105 months to 120 to 150 months, see id. ch. 5, pt. A. The final Guidelines range, in light of the statutory maximum sentence of ten years, see 18 U.S.C. § 924(a)(2), was 120 months. See U.S. Sentencing Guidelines Manual § 5G1.1.

Grier objected to the four-level enhancement, and a sentencing hearing was held on February 25, 2005. The parties argued briefly over the correct burden of proof. Defense counsel claimed that the reasonable-doubt standard should apply while counsel for the government maintained that a preponderance standard should govern. The District Judge agreed with the government: "I believe that the standard currently is preponderance, [and] until [I have] something more definitive from the Court of Appeals, it's what I'll use."

The only witness to testify at the hearing was Navarro. He described the altercation and stated that he had not possessed a firearm or any other weapon on his person at the time. He admitted, however, that he had not seen Grier "pull" the gun from his clothing:

I don't know if the gun fell out [of Grier's pockets] or whatever. People was telling me that he was taking the gun out. And from there, that's when everybody tried to get the gun away from him.

Defense counsel argued that the enhancement should not apply because Grier had acted in self-defense. She also asserted that, under Pennsylvania law, Grier was guilty not of aggravated assault but of "simple assault by mutual consent," a lesser-graded version of simple assault punishable by imprisonment for one year or less. See 18 Pa. Cons.Stat. §§ 1104, 2701.3 This crime is not considered a "felony" under the Guidelines, see U.S. Sentencing Guidelines Manual § 2K2.1 cmt. n. 1, and would not support the enhancement.

The District Court adopted the presentence report, including the finding of aggravated assault and concomitant enhancement. It also granted a downward departure of two offense levels "in light of [Navarro's] conduct, which was partly responsible for the four[-]point enhancement." With this departure, the range of imprisonment prescribed by the Guidelines was reduced to 100 to 120 months.

The District Court recognized that the Guidelines were advisory but nevertheless imposed a term of imprisonment of 100 months, within the recommended range. It justified this sentence in a single statement: "The Court believes that 100 months is reasonable in view of the considerations of [18 U.S.C. §] 3553(a)." Defense counsel did not object to the District Court's explanation for the sentence.

This timely appeal followed. Grier argues that the District Court erred in applying a preponderance standard to facts relevant to the four-level enhancement, in finding that he had committed aggravated assault under Pennsylvania law, and in imposing sentence without fully articulating its consideration of the factors under 18 U.S.C. § 3553(a). We have jurisdiction over these claims under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. See United States v. Cooper, 437 F.3d 324, 327 (3d Cir.2006).

There is no doubt that Booker, by rendering the United States Sentencing Guidelines advisory rather than mandatory, "brought about sweeping changes in the realm of federal sentencing." United States v. Davis, 407 F.3d 162, 163 (3d Cir.2005). But there is every reason to believe that the Supreme Court intended that the practices that have guided us and other courts in the twenty years since the Guidelines were first promulgated would continue to govern sentencing in the federal courts.

Under an advisory Guidelines scheme, district courts should continue to make factual findings by a preponderance of the evidence and courts of appeals should continue to review those findings for clear error. The only change in the equation is that, at the end of the day, the district court is not bound by the recommended Guidelines range, but must impose a sentence based on all the factors articulated in § 3553(a). The court of appeals must then decide whether that final sentence is "reasonable."

The primary issue in this case is whether the Due Process Clause requires facts relevant to enhancements under the United States Sentencing Guidelines, particularly those that constitute a "separate offense" under governing law, to be proved beyond a reasonable doubt. The Supreme Court did not reach this issue in Booker, see 543 U.S. at 259, 125 S.Ct. 738, and we declined to address it in Cooper, 437 F.3d at 330 & n. 7. Nevertheless, we believe that the discussion in Booker regarding the Jury Trial Clause of the Sixth Amendment applies with equal force to the Due Process Clause of the Fifth Amendment. See Apprendi v. New Jersey, 530 U.S. 466, 484, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (discussing these "associated" provisions). Once a jury has found a defendant guilty of each element of an offense beyond a reasonable doubt, he has been constitutionally deprived of his liberty and may be sentenced up to the maximum sentence authorized under the United States Code without additional findings beyond a reasonable doubt.

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, 125 S.Ct. 738 (citing United States v. Gaudin, 515 U.S. 506, 511, 115 S.Ct. 2310, 132 L.Ed.2d 444 (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, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004); Apprendi, 530 U.S. at 476-77, 120 S.Ct. 2348; Harris v. United States, 536 U.S. 545, 556-68, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002) (plurality opinion). Individuals must be provided notice of the consequences of their conduct. They must be informed of the nature of illegal acts, through legislative definition of the elements of punishable crimes, and of the possible sentences for those offenses upon conviction. See Blakely, 542 U.S. at 301-02, 306-07, 311-12, 124 S.Ct. 2531; Apprendi, 530 U.S. at 476-77, 489-94, 120 S.Ct. 2348; Harris, 536 U.S. at 556-68, 122 S.Ct. 2406. Under the Fifth and Sixth Amendments, individuals have a right to demand that each and every element of the alleged crime be submitted to a jury and proved beyond a reasonable doubt before sentence is imposed. It follows, then, that the fundamental question for these purposes is what facts constitute the "elements" of a "crime."

The answer was provided in Apprendi: the facts constituting the elements of a crime are those that increase the maximum punishment to which the defendant is exposed under governing law. Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. This conclusion was based on a simple syllogism. A crime is defined as conduct that is punishable by the state. Conduct is punishable by the state when it exposes the individual to new or additional penalties. Therefore, any conduct that exposes an individual to punishment or increases the maximum punishment to which he or she is otherwise exposed must be deemed a crime. The predicate facts of such conduct constitute the "elements" of the "crime." Id. at 483 & n. 10, 120 S.Ct. 2348 (citing Jones v. United States, 526 U.S. 227, 244-48, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999)); see also id. at 500-01, 120 S.Ct. 2348 (Thomas, J., concurring).

It is to these facts, and to these facts alone, that the rights to a jury trial and proof beyond a reasonable doubt attach. "The Fifth and Sixth Amendments ensure that the defendant `will never get more punishment than he bargained for when he did the crime,' but they do not promise that he will receive `anything less' than that." Harris, 536 U.S. at 566, 122 S.Ct. 2406 (quoting Apprendi, 530 U.S. at 498, 120 S.Ct. 2348 (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 offend the Fifth and Sixth Amendment rights to a jury trial and proof beyond a reasonable doubt. Harris, 536 U.S. at 556-68, 122 S.Ct. 2406; Apprendi, 530 U.S. at 481-82, 120 S.Ct. 2348 (citing Williams v. New York, 337 U.S. 241, 242-47, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949)); McMillan v. Pennsylvania, 477 U.S. 79, 89-90, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986). An individual who is provided such notice and is nevertheless found by a jury beyond a reasonable doubt to have engaged in illegal conduct has no grounds to complain when the maximum punishment authorized by the legislature is meted out by a judge. See Blakely, 542 U.S. at 304-05, 309, 124 S.Ct. 2531; Harris, 536 U.S. at 556-68, 122 S.Ct. 2406. As the Supreme Court stated in McMillan, "[o]nce the reasonable-doubt standard has been applied to obtain a valid conviction, `the criminal defendant has been constitutionally deprived of his liberty to the extent that the state may confine him[,]'" in this case, the maximum allowed under Title 18 of the United States Code. McMillan, 477 U.S. at 92 n. 8, 106 S.Ct. 2411 (quoting Meachum v. Fano, 427 U.S. 215, 224, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976)).

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, 125 S.Ct. 738 (citing 21 U.S.C. § 841(a)(1), (b)(1)(a)(iii)). The United States Sentencing Guidelines, however, prescribed a base imprisonment range of 210 to 262 months. Id. (citing U.S. Sentencing Guidelines Manual §§ 2D 1.1(c)(4), 4A 1.1). During a sentencing hearing, the trial judge found by a preponderance of the evidence that the defendant had possessed an additional 566 grams of cocaine base and had obstructed justice. Id. These findings increased the Guidelines imprisonment range to 360 months to life. Id. The judge then imposed a sentence commensurate with this range, of thirty years. Id.

The Supreme Court reversed. Of central importance to its conclusion was the mandatory nature of the Guidelines. Id. at 233-35, 125 S.Ct. 738. The Sentencing Reform Act required the district judge to impose a sentence within the "base" range recommended by the Guidelines, established solely by the facts of conviction, unless certain enumerated circumstances were found to be present. Id. (citing 18 U.S.C. § 3553(b)). In other words, upon conviction by a jury, the maximum punishment to which the individual was exposed was the highest point in the base range prescribed by the Guidelines. Id. The judge lacked authority to impose a higher sentence in the absence of additional findings of fact. Id.

These additional facts, under the reasoning of Apprendi, constituted "elements" of a "crime." By raising the recommended Guidelines range, they authorized the district judge to impose a higher sentence than would be permissible under the Sentencing Reform Act based solely on the facts of conviction. Id. They increased the maximum sentence to which the defendant would otherwise be exposed upon conviction by a jury. Id. These facts were therefore properly classified as elements of a crime, subject to the rights to a jury trial and proof beyond a reasonable doubt. Id. (citing Apprendi, 530 U.S. at 481, 120 S.Ct. 2348).

The final sentence imposed in Booker was nearly ten years more than the base range prescribed by the Guidelines. Id. The range had been increased based on findings made by the sentencing judge, without submission to a jury. Id. This violated the defendant's rights under the Sixth Amendment, as defined in Apprendi.

This conclusion not only necessitated reversal of the defendant's sentence; it cast doubt on the constitutionality of the federal sentencing regime as a whole. See id. The Guidelines require that all facts relevant to sentencing be found by a judge based on information presented during a post-trial hearing. Id. There is no provision for a jury to make these determinations, nor any reasonable means to effect this result within the existing structure. Jury determinations are inherently incompatible with the Guidelines scheme. Id.

The Court resolved this problem by returning to the basis of its holding: the constitutional infirmity of the Guidelines was attributable to their mandatory application under the Sentencing Reform Act. All members of the Court agreed that, if the Guidelines were merely advisory, the Sixth Amendment problem would fall away. Id. at 233, 259, 120 S.Ct. 2348. Facts relevant to enhancements under the Guidelines would no longer increase the maximum punishment to which the defendant is exposed, but would simply inform the judge's discretion as to the appropriate sentence. Id. These facts would then not be deemed "elements" of a "crime" and would not trigger the rights recognized in Apprendi. Id.

To achieve this result, the Court "sever[ed] and excise[d]" two statutory provisions: "the provision that requires sentencing courts to impose a sentence within the applicable Guidelines range (in the absence of circumstances that justify a departure), see 18 U.S.C. § 3553(b)(1),[4] and the provision that sets forth standards of review on appeal, including de novo review of departures from the applicable Guidelines range, see [18 U.S.C.] § 3742(e).5" Booker, 543 U.S. at 259, 125 S.Ct. 738. The excision of these provisions rendered the Guidelines advisory, freeing the trial judge to impose any sentence permitted under the United States Code using the calculated Guidelines range as only one of seven considered factors. Id. The maximum legislatively authorized punishment to which the defendant is exposed is no longer the maximum prescribed by the Guidelines; instead, it is the maximum prescribed by the United States Code. Id. Therefore, findings of fact relevant to the Guidelines need not be submitted to a jury. Id.

The Court noted that the "remainder of the Act `function[s] independently.'" Id. (quoting Ala. Airlines, Inc. v. Brock, 480 U.S. 678, 684, 107 S.Ct. 1476, 94 L.Ed.2d 661 (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, 125 S.Ct. 738. Of course, for Sixth Amendment purposes, this change makes all of the difference. See id.

The Supreme Court in Booker did not address the applicability of the right to proof beyond a reasonable doubt in an advisory Guidelines system. This is easily explained: it had no reason to do so. The question presented in Booker was "[w]hether the Sixth Amendment is violated by the imposition of an enhanced sentence under the United States Sentencing 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, 125 S.Ct. 738, 160 L.Ed.2d 621 (No. 04-104).6 The absence of discussion of the Fifth Amendment is not an implicit recognition that the right to proof beyond a reasonable doubt applies at sentencing. Rather, it simply reflects the limited scope of the grant of certiorari.

There can be no question, in light of the holding of Booker and the reasoning of Apprendi, that the right to proof beyond a reasonable doubt does not apply to facts relevant to enhancements under an advisory Guidelines regime. Like the right to a jury trial, the right to proof beyond a reasonable doubt 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, 120 S.Ct. 2348. 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, 125 S.Ct. 738. They merely inform the judge's broad discretion. Id.

Post-Booker, the punishments chosen by Congress in the United States Code determine the statutory maximum for a crime. The Code identifies the facts necessary to establish an offense and any aggravating circumstances (e.g., significant drug quantity, use of a firearm, injury to a victim) that increase the statutory maximum punishment. These facts must be established beyond a reasonable doubt. Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. But, once these facts are found, triggering the statutory maximum, the judge may impose a sentence anywhere under that maximum without jury determinations and proof beyond a reasonable doubt. Harris, 536 U.S. at 565-67, 122 S.Ct. 2406; Williams, 337 U.S. at 242-47, 69 S.Ct. 1079.

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, 122 S.Ct. 2406 ("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 the decisions of each of our sister circuits that has addressed this issue. See, e.g., United States v. Dorcely, 454 F.3d 366, 372 (D.C.Cir. 2006); Cirilo-Munoz v. United States, 404 F.3d 527, 532-33 (1st Cir.2005); United States v. Gonzalez, 407 F.3d 118, 125 (2d Cir.2005); United States v. Barton, 455 F.3d 649, 657-58 (6th Cir.2006); McReynolds v. United States, 397 F.3d 479, 481 (7th Cir.2005); United States v. Okai, 454 F.3d 848, 852 (8th Cir.2006); United States v. Dare, 425 F.3d 634, 642 (9th Cir.2005); United States v. Magallanez, 408 F.3d 672, 685 (10th Cir.2005); United States v. Duncan, 400 F.3d 1297, 1304-05 (11th Cir. 2005).

Grier rejects the rationale of these decisions and proposes a novel standard under which the right to proof beyond a reasonable doubt would attach to facts relevant to the Guidelines when those facts constitute a "separate offense." He finds support for this position in Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (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, 119 S.Ct. 1215. 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, 119 S.Ct. 1215. 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, 119 S.Ct. 1215.

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, 119 S.Ct. 1215. It was not a statement of constitutional doctrine and did not purport to base the right to proof beyond a reasonable doubt on whether the facts at issue constitute an independent crime. Id.

The only discussion of constitutional rights in Jones is in the subsidiary context of the interpretative canon of avoidance. Id. at 239-40, 119 S.Ct. 1215. 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, 119 S.Ct. 1215. 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, 119 S.Ct. 1215.

There is no question of statutory interpretation here.7 The Guidelines were clearly intended by Congress to operate as sentencing factors, not as elements of a crime. The lack of clarity regarding congressional intent that compelled the Supreme Court in Jones to examine whether "serious bodily injury" could be analogized to an independent crime is simply not present here.

This is a constitutional case, governed by the rule of Apprendi: the rights to a jury trial and to proof beyond a reasonable doubt attach to those facts that increase the statutory maximum punishment to which the defendant is exposed. 530 U.S. at 490, 120 S.Ct. 2348. This standard is not based upon the legislature's definition of a fact as an "element" or "enhancement," id. at 498-90, 120 S.Ct. 2348, or upon a formalistic "multifactor parsing of statutes," id. at 501, 120 S.Ct. 2348 (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, 119 S.Ct. 1215. Considering whether Grier's conduct might fit within the definition of another crime is no more than what sentencing judges traditionally did under indeterminate sentencing schemes. As the Supreme Court stated in McMillan, there is no way to distinguish the finding of this kind of "separate offense" "from a host of other express or implied findings sentencing judges typically make on the way to passing sentence." McMillan, 477 U.S. at 92 n. 8, 106 S.Ct. 2411. The sole question under Apprendi is whether the fact at issue increases the maximum punishment to which the defendant is exposed. 530 U.S. at 490, 494, 120 S.Ct. 2348 ("[T]he relevant inquiry is one not of form, but of effect—does the required finding expose the defendant to a greater punishment than that authorized by the jury's guilty verdict?").

Facts relevant to application of the Guidelines—whether or not they constitute a "separate offense"—do not have this effect. E.g., Tannis, 942 F.2d at 198; see also U.S. Sentencing Guidelines Manual § 5G1.1. They inform the district court's discretion without limiting its authority. They therefore do not constitute "elements" of a "crime" under the rationale of Apprendi and do not implicate the rights to a jury trial and proof beyond a reasonable doubt. 530 U.S. at 490, 120 S.Ct. 2348.

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, 125 S.Ct. 738 ("the remainder of the act functions independently"), and has been approved by this Court, see, e.g., United States v. Mobley, 956 F.2d 450, 455 (3d Cir.1992).8

We will affirm the District Court's decision to apply the preponderance standard to all facts relevant to the Guidelines, including the finding that Grier committed the offense of conviction in connection with an aggravated assault under Pennsylvania law.

That the District Court applied an acceptable burden of proof does not, of course, mean that its findings of fact should be upheld. We have traditionally reviewed factual findings relevant to sentencing under a "clearly erroneous" standard. See, e.g., United States v. Lennon, 372 F.3d 535, 538 (3d Cir.2004). The parties apparently assume that the same standard should govern in this case.

However, the issue is not so clear cut. The Supreme Court in Booker excised subsection (e) of 18 U.S.C. § 3742, the provision of the United States Code that defined the appropriate standard of review for issues relevant to sentencing. 543 U.S. at 259, 125 S.Ct. 738. It held that appellate courts should thereafter review the ultimate sentence for "reasonableness." Id. at 260-63, 125 S.Ct. 738. Unfortunately, it did not specify whether the clearly erroneous standard should continue to apply to factual findings bearing on the advisory Guidelines range.

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, 125 S.Ct. 738. Third, courts could continue to review findings for "clear error." See Lennon, 372 F.3d at 538.

The first alternative, under which appellate courts would decline to review factual findings relevant to the Guidelines, is clearly untenable. District courts are required, under 18 U.S.C. § 3553(a), to consider the range prescribed by the Guidelines in imposing sentence on a defendant. Id. § 3553(a)(4); see also Booker, 543 U.S. at 261, 125 S.Ct. 738; Cooper, 437 F.3d at 329-32. The only manner by which this range can be determined is through a series of factual findings, adjusting the defendant's offense level and criminal history category. An error in these findings will result in an error in the recommended sentencing range and, thus, will necessarily impact the district court's assessment of the factors of 18 U.S.C. § 3553(a). Appellate review of the district court's factual conclusions is essential to ensure its compliance with statutory mandates. See United States v. Haack, 403 F.3d 997, 1003 (8th Cir.), cert. denied, ___ U.S. ___, 126 S.Ct. 276, 163 L.Ed.2d 246 (2005).

The second alternative, under which courts of appeals would review findings of the district court for "reasonableness," is also unfeasible. The Supreme Court explained in Booker that review for "reasonableness" is meant to assess the ultimate sentence impose, to determine whether the sentencing judge gave meaningful consideration to the factors of 18 U.S.C. § 3553(a). 543 U.S. at 260-61, 125 S.Ct. 738. Nothing in Booker suggests that the same standard is to be applied to evaluate the quantum of evidence offered in support of a particular finding of fact, even one that played a role in the court's final sentence. Indeed, application of the "reasonableness" standard, with its broad focus on policy goals, would be incompatible with review of factual findings. See United States v. Mashek, 406 F.3d 1012, 1015 (8th Cir.2005).

Review for clear error offers the sole viable approach. The Supreme Court in Booker excised the "clearly erroneous" standard from 18 U.S.C. § 3742(e) only because other aspects of that subsection included impermissible references to a mandatory Guidelines scheme. 543 U.S. at 260, 125 S.Ct. 738. 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, ___ U.S. ___, 126 S.Ct. 1477, 164 L.Ed.2d 257 (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, ___ U.S. ___, 126 S.Ct. 1142, 163 L.Ed.2d 1003 (2006); United States v. Crawford, 407 F.3d 1174, 1177 (11th Cir. 2005). Indeed, we have previously suggested that the clearly erroneous standard would continue to apply post-Booker. See United States v. Miller, 417 F.3d 358, 362-63 (3d Cir.2005) ("Nothing in Booker . . . necessarily calls into question the correctness of the District Court's factual findings or procedural decisions at the resentencing, or, for that matter, this court's [previous] approval thereof."); United States v. Pojilenko, 416 F.3d 243, 247 (3d Cir.2005) (reviewing factual findings relevant to sentencing for clear error).

Despite the excision of subsection (e) of 18 U.S.C. § 3742, this Court will continue to review factual findings relevant to the Guidelines for clear error and to exercise plenary review over a district court's interpretation of the Guidelines. See, e.g., Robinson, 433 F.3d at 35. "A finding is `clearly erroneous' when[,] although there is evidence to support it, the reviewing [body] on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Trust for S. Cal., 508 U.S. 602, 622, 113 S.Ct. 2264, 124 L.Ed.2d 539 (1993) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (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, 125 S.Ct. 738.

Grier challenges the finding in this case that he committed aggravated assault. Aggravated assault is defined under Pennsylvania law as an "attempt[] to cause serious bodily injury to another . . . under circumstances manifesting extreme indifference to the value of human life" or an "attempt[] to cause . . . bodily injury to another with a deadly weapon." 18 Pa. Cons.Stat. § 2702(a). An "attempt" may be found "when, with intent to commit a specific crime, [the individual] does any act which constitutes a substantial step toward the commission of that crime." Id. § 901(a); see also Commonwealth v. Hall, 574 Pa. 233, 830 A.2d 537, 541-42 (2003).

At the sentencing hearing, Navarro testified that he did not enter the fight with any weapons. The firearm was produced in some manner during the course of the altercation, and other individuals warned Navarro that Grier had a gun.9 Soon thereafter, the gun discharged. When the two combatants stood up, Grier was holding the weapon, aimed at Navarro. Grier then pointed the gun toward the sky, fired a single shot, and left the scene.

The precise circumstances of the fight are matters of reasonable speculation. It is arguable—and is argued by Grier on appeal—that the record shows that the gun accidentally dropped from his pocket during the altercation, and that his subsequent actions were intended merely to dissuade Navarro from continuing the fight. But the District Court found that Grier intentionally pulled the gun from his clothing and, while the two men were on the ground, fired a shot in an attempt to harm or kill Navarro. He thereafter rose and aimed the gun once again at Navarro but, for whatever reason, decided to fire the weapon skyward and withdraw from the fight.

"Where, as here, the district court makes no independent findings of fact in relation to sentencing issues, but instead adopts the reasons set forth by the probation officer in the presentence investigation report, we view the report as containing the only findings of fact that support the court's sentencing decision." United States v. Collado, 975 F.2d 985, 990 (3d Cir.1992). However, because in this case the presentence investigation report does not contain any specific reasons to support its finding of aggravated assault and the District Court heard testimony from the victim and did not make any further findings on the question, we will refrain from reviewing its determination regarding the aggravated assault until it has stated more explicitly how it reached Grier's sentence.

We lack a sufficient record to review Grier's sentence for "reasonableness." The touchstone of "reasonableness" is whether the record as a whole reflects rational and meaningful consideration of the factors enumerated in 18 U.S.C. § 3553(a).10 Cooper, 437 F.3d at 329-32; see also Booker, 543 U.S. at 261, 125 S.Ct. 738. It must be clear that the district court understood and reasonably discharged its obligation to take all of the relevant factors into account in imposing a final sentence. E.g., Cooper, 437 F.3d at 329-32.

The record in this case is simply too sparse to allow us to conclude that the District Court honored its statutory duty.11 The only explanation of the sentence provided by the District Court was: "The Court believes that 100 months is reasonable in view of the considerations of section 3553(a)." This statement, as a justification of the sentence, leaves much to be desired. It is devoid of substantive content and offers little assistance to an appellate tribunal reviewing the sentence.

More elaboration is necessary. The Sentencing Reform Act mandates that the District Court "consider" the factors of 18 U.S.C. § 3553(a). Id. The record must disclose meaningful consideration of the relevant statutory factors and the exercise of independent judgment, based on a weighing of the relevant factors, in arriving at a final sentence. Cooper, 437 F.3d at 329-32.

The rationale by which a district court reaches a final sentence is important. It offers the defendant, the government, the victim, and the public a window into the decision-making process and an explanation of the purposes the sentence is intended to serve. It promotes respect for the adjudicative process, by demonstrating the serious reflection and deliberation that underlies each criminal sentence, and allows for effective appellate oversight.

We will remand this case to allow the District Court to resentence the defendant. We do not suggest that the original sentence reflects anything less than the sound judgment of the District Judge, or that the final sentence should necessarily differ from the one previously imposed. The nature of the final sentence is, as always, a matter within the discretion of the District Court. We do ask, however, that the District Court explain its decision on the record, specifically by reference to the factors of 18 U.S.C. § 3553(a) and further elaboration on its findings regarding the factual underpinnings of the assault enhancement.

The opinion in Booker did not alter the burden of proof or the standard of review for findings of fact relevant to sentencing. But it did, by rendering the United States Sentencing Guidelines advisory rather than mandatory, place a premium on thorough explication of sentencing decisions. A reasoned and rational justification for a sentence is necessary to assure the parties of the fairness of the proceedings, to instill public confidence in the judicial process, and to allow for effective appellate review.

The explanation offered by the District Court does not provide us with a sufficiently detailed explanation that lends itself to effective review. It simply recites the necessity of compliance with 18 U.S.C. § 3553(a) without expressly considering the relevant statutory factors. While the original sentence was most likely the product of comprehensive and thoughtful deliberation, the record does not reflect that fact. We will remand this case to allow the District Court to reconsider the factors of 18 U.S.C. § 3553(a) on the record and then to resentence the defendant.

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

RENDELL, Circuit Judge, concurring.

I agree with Judge Fisher's excellent reasoning and result. However, I write separately because I believe that due process concerns regarding the standard of proof at sentencing are minimal, if not non-existent, when the sentence is below the statutory maximum, as it was here.

Grier argues that due process requires that other potentially criminal conduct relied on by the sentencing judge to enhance his sentence must be proven beyond a reasonable doubt. This is incorrect. The Supreme Court stated in McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986) that "[o]nce the reasonable-doubt standard has been applied to obtain a valid conviction, `the criminal defendant has been constitutionally deprived of his liberty to the extent that the State may confine him.'" Id. at 92 n. 8, 106 S.Ct. 2411 (quoting Meachum v. Fano, 427 U.S. 215, 224, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976)). In other words, once convicted of a crime, the defendant can be punished to the extent punishment is allowed by statute for that crime without implicating due process.

Judge Sloviter quotes with specific emphasis Justice Thomas's partial dissent in Booker and his statement that "any fact that increases the sentence beyond what could have been lawfully imposed on the basis of facts found by the jury or admitted by the defendant" must be proved beyond a reasonable doubt. United States v. Booker, 543 U.S. 220, 319 n. 6, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) (Thomas, J., dissenting in part). Here, there was no such increase by the sentencing judge, because the Guidelines are advisory and Grier was sentenced below the statutory maximum of 120 months.

Due process requires only that the sentence for the crime of conviction not exceed the statutory maximum, and here the sentence was within that limit. The spectre of another "crime" impacting Grier's sentence would be troublesome from a due process standpoint only if we were concerned that Grier's sentence was in fact based predominantly on conduct wholly collateral to his convicted crime. This concern animated our opinion in United States v. Kikumura, 918 F.2d 1084 (3d Cir.1990), and was explicated very clearly in Judge Rosenn's concurrence in that case.12 As noted by Judge Fisher in the majority opinion, supra p. 568, n. 8, here there is no claim that the sentencing court did anything other than consider the evidence of assault as relevant conduct normally considered in connection with sentencing for the offense of conviction.13 Due process accordingly is not implicated.

AMBRO, Circuit Judge, concurring in judgment.

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

With its landmark ruling in Apprendi, the Supreme Court began to reinvigorate an important principle: "[D]ue process and associated jury protections extend, to some degree, to determinations that go not to a defendant's guilt or innocence, but simply to the length of his sentence." 530 U.S. at 484, 120 S.Ct. 2348 (brackets and internal quotation marks omitted). What our Court does today, however, confirms Justice Stevens's lament that the Supreme Court in Booker "effectively eliminated the very constitutional right Apprendi sought to vindicate." 543 U.S. at 302, 125 S.Ct. 738 (Stevens, J., dissenting in part). In response, I believe that a less manipulable rule should be set—that constitutional protections apply not only to those facts that authorize the "statutory maximum" (as phrased by Apprendi), see 530 U.S. at 490, 120 S.Ct. 2348, but to every fact (save prior convictions) identified by the law itself as deserving of additional punishment, no matter what that fact may be called.15 Only in this way can the principles of Apprendi—followed through in Blakely, Booker, and, most recently, Cunningham16 —be fully respected.

The concept is simple: if our society, through its law, deems a certain fact worth punishing (or warranting additional punishment), then the Constitution commands certain procedural protections attending the finding of that fact. Rather than following this principle of fundamental fairness, however, our law—through use of the Federal Sentencing Guidelines—criminalizes activity "on the cheap." Despite Apprendi and its progeny, we continue to allow sentencing judges, once a jury has found beyond a reasonable doubt that a defendant has committed one crime, then to find him guilty by a preponderance of the evidence of other crimes for which he was not tried—or worse, tried and acquitted —and to sentence him as if he had been convicted of them as well. In effect, we have a shadow criminal code under which, for certain suspected offenses, a defendant receives few of the trial protections mandated by the Constitution.

Yet, much as my sympathies align with the principles explained in Judge Sloviter's and Judge McKee's superb dissents, I have concluded that I am bound by Supreme Court precedent to concur in the judgment of the majority in this case. To create a sentencing process that fully carries through on the promise of Apprendi and Blakely, I believe the Supreme Court would have to overrule, at least, McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986) (allowing "sentencing factors" that enhance punishment to be proven by a preponderance of the evidence), and Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002) (reaffirming McMillan after Apprendi and again holding that judicial fact-finding by a preponderance of the evidence at sentencing passes constitutional muster).

Many, including Justice Breyer in Harris itself, have been unable to reconcile McMillan and Harris with the Supreme Court's holding in Apprendi. See 536 U.S. at 569-70, 122 S.Ct. 2406 (Breyer, J., concurring).17 But "it is th[e] [Supreme] Court's prerogative alone to overrule ... its own precedents." State Oil Co. v. Khan, 522 U.S. 3, 20, 118 S.Ct. 275, 139 L.Ed.2d 199 (1997). This it has not yet done. For this reason alone, I join the result reached by the majority.18 I do not join its opinion because, among other things, I do not agree with its suggestion that the Due Process Clause has no force in criminal sentencing.

Both the majority and dissenting opinions contend that the Supreme Court's Apprendi line of cases, culminating at the federal level with Booker, dictates the answer to the question presented here. It does not.

Apprendi holds that, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 490, 120 S.Ct. 2348. The majority correctly notes that Apprendi's holding is rooted in the jury right of the Sixth Amendment, not the right to due process guaranteed by the Fifth, Maj. Op., supra, at 565; Apprendi speaks only of the reasonable-doubt standard for jury verdicts as a "companion" to the jury guarantee, see 530 U.S. at 478, 120 S.Ct. 2348.19 Moreover, nothing in Apprendi's progeny—particularly Blakely and Booker—altered its Sixth Amendment basis. In Blakely, the Supreme Court provided further clarification of what was meant by Apprendi's use of the term "statutory maximum," saying that it refers not to "the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings." 542 U.S. at 303-04, 124 S.Ct. 2531 (first emphasis added). In Booker, Justice Stevens's merits opinion simply took that definition and applied it to the Federal Sentencing Guidelines. 543 U.S. at 233, 125 S.Ct. 738 ("[T]here is no distinction of constitutional significance between the Federal Sentencing Guidelines and the Washington procedures at issue in [Blakely]."). In short, because facts found by judges led to Guidelines sentences that had "the force and effect of laws" (i.e., they constituted statutory maximums under Apprendi and Blakely), the Guidelines as they stood were unconstitutional. Id. at 234, 125 S.Ct. 738.

Justice Breyer's majority opinion in Booker remedied this constitutional infirmity not by having juries find Guidelines facts, but instead by unmaking the Guidelines as statutory maximums—"sever[ing] and excis[ing]" those portions of the U.S.Code that made them binding on sentencing and appellate courts. See 18 U.S.C. §§ 3553(b)(1), 3742(e); Booker, 543 U.S. at 245, 258-65, 125 S.Ct. 738. This fix unmade the top of the Guidelines ranges as statutory maximums (which Justice Stevens, for the Court, had just held them to be), and turned the relevant focus to the maximum sentences set out in the U.S.Code. After Booker, then, the Sixth Amendment does not require Guidelines facts to be proven to a jury; instead, juries must find only those facts that increase the applicable maximum sentence as reflected in the U.S.Code.

Few, I suspect, disagree with this analysis. For our case, though, it is as unhelpful as it is obvious. The issue here is not what the Sixth Amendment requires, but rather what is consistent with due process as protected by the Fifth Amendment.20

Though Apprendi speaks only of the burden of proof for a jury verdict that is required by the Fifth Amendment right to due process as a "companion" to the Sixth Amendment jury right, 530 U.S. at 478, 120 S.Ct. 2348, this is understandable: the Sixth Amendment is Apprendi's principal focus. Predictably, no majority opinion in Blakely or Booker (which only expounded on Apprendi) even mentions the Fifth Amendment or due process. It is somewhat perplexing, then, that the majority here invokes "the reasoning of Apprendi" and "the holding of Booker"—both Sixth Amendment cases—to explain its Fifth Amendment due process ruling in this case. Maj. Op., supra, at 565. Though every fact that must be found by a jury must also be found beyond a reasonable doubt, this does not mean that those facts not required to be found by a jury do not have to be found beyond a reasonable doubt. The Supreme Court demonstrated long ago that the Fifth Amendment sometimes requires application of the reasonable-doubt standard to facts not found by a jury. See In re Winship, 397 U.S. 358, 359-60, 365-68, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (holding on due process grounds that findings in a juvenile criminal proceeding must be found beyond a reasonable doubt, even though not determined by a jury).

While I believe the majority's holding will yield a result consistent with Supreme Court precedent in most cases, its reasoning, which intimates that Booker's Sixth Amendment holding addresses and solves all due process issues relating to the burden of proof for Guidelines facts, is too sweeping. See Maj. Op., supra, at 566 ("The Due Process Clause ... affords no right to have [Guidelines facts] proved beyond a reasonable doubt." (emphasis added)). More importantly, it is also inconsistent with McMillan, which, unlike Booker, provides the most complete answer to the issue presented here.

In McMillan, the Supreme Court upheld a Pennsylvania statute that mandated a minimum term of imprisonment upon a judicial finding, by a preponderance of the evidence, that the defendant "`visibly possessed a firearm' during the commission of the [underlying] offense." 477 U.S. at 81, 106 S.Ct. 2411. The Court rejected the defendant's contention that due process required the finding of a sentencing factor be made on a heightened standard of proof (either proof beyond a reasonable doubt or by clear and convincing evidence). Id. at 91, 106 S.Ct. 2411. Explaining its decision, the Court reasoned that "[s]entencing courts have traditionally heard evidence and found facts without any prescribed burden of proof at all," and saw "nothing in Pennsylvania's scheme that would warrant constitutionalizing burdens of proof at sentencing." Id. at 91-92, 106 S.Ct. 2411. It noted the undeniable constitutionality of a sentencing scheme where "the legislature had simply directed the court to consider visible possession in passing sentence." Id. at 92, 106 S.Ct. 2411 (emphasis in original). Given this, there was no reason "why the due process calculus would change simply because the legislature has seen fit to provide sentencing courts with additional guidance." Id. McMillan, therefore, provides that facts relevant only to sentencing must be proven only by a preponderance of the evidence—if a particular standard is required at all.

In Apprendi, decided 14 years after McMillan, the Supreme Court addressed the viability of that holding: "The principal dissent accuses us of today `overruling McMillan.' We do not overrule McMillan. We limit its holding to cases that do not involve the imposition of a sentence more severe than the statutory maximum for the offense established by the jury's verdict...." 530 U.S. at 487 n. 13, 120 S.Ct. 2348. Two years later, in Harris, the Court specifically took up the question of "whether McMillan stands after Apprendi" and reaffirmed it. 536 U.S. at 550, 568, 122 S.Ct. 2406. Necessarily, therefore, the Fifth Amendment (pursuant to McMillan) must protect the finding of some facts below the statutory maximum, even if the Sixth Amendment (pursuant to Apprendi) does not.

For the federal system (and this case), this is where Booker becomes relevant. Even after Apprendi, everyone assumed that the "statutory maximum" of which it spoke referred to the maximum sentence set out in the U.S.Code. See Dis. Op., infra, at 606 (McKee, J., dissenting) (citing United States v. Leahy, 438 F.3d 328, 345 & n. 16 (3d Cir.2006) (McKee, J., dissenting) (citing cases)). The logic of Blakely suggested that this assumption was not correct,21 and Justice Stevens's merits opinion in Booker confirmed as much—the top of a mandatory Guidelines range constituted a statutory maximum, the determinative facts of which must be found by a jury beyond a reasonable doubt. Just as soon as Justice Stevens's merits opinion in Booker declared the Federal Sentencing Guidelines unconstitutional, however, Justice Breyer ushered them out of "Apprendi-land"22 to constitutional safety. They are now "advisory" and no longer constitute statutory maximums as defined in Apprendi and Blakely.23

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

This technicality can be significant, however, because McMillan provided caveats to its general Fifth Amendment rule—caveats which the Apprendi line does not create in the Sixth Amendment context. See Cunningham, 127 S.Ct. at 868, 869, 878, 879 (referring to Apprendi's "bright-line rule"); Blakely, 542 U.S. at 308, 124 S.Ct. 2531 (contrasting Apprendi's "bright-line rule" with McMillan). And this is where the majority and I part company in this case, as the rule it announces does not allow for exception. See Maj. Op., supra, at 562 ("It is to these facts [`elements' of the `crime'], and these facts alone, that the right[] to ... proof beyond a reasonable doubt attach[es]." (emphasis added)). I echo Judge Sloviter on this point: "Can the majority really be suggesting that the Due Process Clause ... is never applicable to any sentencing issue?" Dis. Op., infra, at 593 (Sloviter, J., dissenting). If that is its intention, the majority is simply incorrect. Even more disturbing, the majority needlessly calls into question one of the few cases ever to apply McMillan and require a heightened burden of proof for sentencing factors. See Maj. Op., supra, at 568 n. 8 (citing United States v. Kikumura, 918 F.2d 1084, 1100 (3d Cir.1990) (holding that Guidelines facts having a disproportionate effect on the sentence must be proven by clear and convincing evidence)).

In McMillan the Supreme Court spent considerable time detailing exactly what about the Pennsylvania statute at issue there led to the conclusion that it did not violate due process. In effect, the discussion sets out various conditions that, if found to be otherwise, can lead to the conclusion that a sentencing factor must be proven to a higher evidentiary standard despite the general rule. First, the Pennsylvania statute in McMillan did not "discard[] the presumption of innocence" or "create ... [evidentiary] presumptions" that "relieve the prosecution of its burden of proving guilt." McMillan, 477 U.S. at 87, 106 S.Ct. 2411. Second, the statute did not "alter[] the maximum penalty for the crime committed []or create[] a separate offense calling for a separate penalty." Id. at 87-88, 106 S.Ct. 2411. Third, the statute and its structural context in Pennsylvania law did not appear to be an attempt by the State to "`evade' the commands of Winship" that elements of a crime be proven beyond a reasonable doubt. Id. at 89, 106 S.Ct. 2411. As an indication of this, the Court noted that the sentencing factor at issue—visible possession of a firearm —had not "historically been treated `in the Anglo-American legal tradition' as requiring proof beyond a reasonable doubt." Id. at 90, 106 S.Ct. 2411 (quoting Patterson v. New York, 432 U.S. 197, 226, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977) (Powell, J., dissenting)).

Lower courts eventually distilled these considerations into a single, metaphorical standard used in McMillan itself—"a tail which wags the dog." 477 U.S. at 88, 106 S.Ct. 2411 ("The [Pennsylvania] statute gives no impression of having been tailored to permit the visible possession finding to be a tail which wags the dog of the substantive offense."). What this elusive standard means in practice is discussed shortly, but for present purposes what is important is that, just as much as its general holding, McMillan's canine metaphor is still the Fifth Amendment's mandate when it comes to the burden of proof for sentencing factors. See Blakely, 542 U.S. at 307-08, 124 S.Ct. 2531 (refusing to adopt McMillan's Fifth Amendment standard for the Sixth Amendment, necessarily implying that it still governs Fifth Amendment burden-of-proof questions); Apprendi, 530 U.S. at 487 n. 13, 120 S.Ct. 2348 (discussed above); Harris, 536 U.S. at 550, 568, 122 S.Ct. 2406 (discussed above).

Four years after McMillan, our Court was the first to apply the tail-that-wags-the-dog standard to require a heightened burden of proof for Guidelines facts. In United States v. Kikumura we held that "if the magnitude of the contemplated departure [from the Guidelines range] is sufficiently great that the sentencing hearing can fairly be characterized as a `tail which wags the dog of the substantive offense[,]' ... the factfinding underlying that departure must be established at least by clear and convincing evidence." 918 F.2d at 1100.25 In the ensuing years, we often relied on Kikumura when determining the appropriate standard of proof for Guidelines facts,26 as did courts across the country.27

Consequently, when the majority here says "there is every reason to believe that the Supreme Court intended that the practices that have guided us and other courts in the twenty years since the Guidelines were first promulgated would continue to govern sentencing in the federal courts," Maj. Op., supra, at 561, but then goes on to "question[]" an important part of our due process sentencing jurisprudence from those same twenty years, Maj. Op., supra, at 568 n. 8, there is a disconnect. Kikumura, like McMillan on which it is based, still controls burden-of-proof questions for Guidelines facts. See United States v. Archuleta, 412 F.3d 1003, 1007-08 (8th Cir. 2005) ("Nothing in Booker changes the interpretation of McMillan in our post-Apprendi cases."). There is, therefore, no need to doubt the "statutory and constitutional underpinnings of [Kikumura]," Maj. Op., supra, at 568 n. 8, and I do not.28

It should be of no moment that the "usual in a Kikumura case" is for the sentencing court to rule "that the tail ha[s] not wagged the dog." Reuter, 463 F.3d at 793. The few defendants who have benefited from the minimal due process protection that Kikumura (as subsequently interpreted) provides surely are grateful that courts have not yet abandoned entirely the Fifth Amendment at sentencing. I would not have us do so now.

To repeat, I am sympathetic to the position advanced by Judge Sloviter and Judge McKee, who would require sentencing enhancements that themselves constitute separate crimes be proven beyond a reasonable doubt. The majority claims that this position is "novel." Maj. Op., supra, at 566. And though I ultimately cannot join my dissenting colleagues, the principle behind their position reflects a concern that is anything but novel.

Contrary to the majority's assertion that the separate-offense concept "appears nowhere in Supreme Court jurisprudence," Maj. Op., supra, at 567, that Court in fact repeatedly has expressed concern over Government manipulation of the criminal justice system by circumventing the procedural protections of trial in order to achieve an identical result at sentencing. See, e.g., Blakely, 542 U.S. at 307 n. 11, 124 S.Ct. 2531 ("Another example of conversion from separate crime to sentence enhancement ... is the obstruction-of-justice enhancement. Why perjury during trial should be grounds for a judicial sentence enhancement on the underlying offense, rather than an entirely separate offense to be found by a jury beyond a reasonable doubt[,] ... is unclear." (internal citations omitted)).29 Recall also that one of the several considerations McMillan identified as significant to its due process analysis was that the sentencing factor at issue there was not a fact that had "historically been treated in the Anglo-American tradition as requiring proof beyond a reasonable doubt." 477 U.S. at 90, 106 S.Ct. 2411 (internal quotation marks omitted). In other words, unlike the enhancement at issue in this case, the sentencing factor in McMillan did not itself constitute a crime. Far from "novel," therefore, the relevance of a sentencing factor also being a separate crime in determining the applicable burden of proof certainly exists in Supreme Court precedent.

For two reasons, however, I cannot join Judge Sloviter or Judge McKee in dissent. First, the rule propounded by the dissenting opinions—like the majority opinion—is inconsistent with McMillan, which I believe is controlling here. See supra Part II.A & n. 11. Second, that rule is incompatible with the Supreme Court's ruling in United States v. Watts, 519 U.S. 148, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997), which also remains good law despite unrelenting challenge. I will address each of these reasons in turn.

Precedent from this and other courts that have applied McMillan demonstrates that there are several relevant considerations in deciding what due process requires in the sentencing context, not simply whether a particular enhancement is also a separate crime. As already noted, the Supreme Court in McMillan cited no fewer than three considerations that were significant to its holding that a heightened standard was not required in that case, only one of which was the sentencing factor's traditional treatment in criminal law. See McMillan, 477 U.S. at 87-90, 106 S.Ct. 2411.

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

In United States v. Lombard, 72 F.3d 170 (1st Cir.1995), for example, the First Circuit Court of Appeals produced a model due process analysis under McMillan. There, the defendant had been acquitted of two state-law murder charges but then was prosecuted on a federal firearms offense. On conviction of the federal charge, the Government successfully enhanced the defendant's sentence based on proof by a preponderance of the evidence that in fact he had committed the state-law murders with the firearm that was the subject of his federal conviction. The District Court sentenced the defendant to life in prison pursuant to the then-mandatory Guidelines.

The First Circuit reversed. Id. 172-74. Significantly, the court cited no single reason. As an initial matter, the base offense level in Lombard had been calculated, in accordance with the Guidelines, "as if [the defendant's] offense of conviction had been murder." Id. at 177. This, combined with no statutory maximum for the underlying offense, took the Guidelines range from 262-327 months in prison to mandatory life imprisonment—which the court characterized as "punishment on an entirely different order of severity." Id. at 178. Moreover, not only did the enhancing conduct also constitute separate crimes, the defendant had already been acquitted of them. "Without impugning the principle that acquitted conduct may be considered in determining a defendant's sentence," the procedural history in Lombard made clear that the Government had intended from the beginning to use a conviction on the federal firearms charge to accomplish what the state-law murder charges had not. Id. at 178-80. The First Circuit then concluded,

Given the magnitude of the sentence "enhancement," the seriousness of the "enhancing" conduct in relation to the offense of conviction, and the seemingly mandatory imposition of the life sentence, this summary process effectively overshadowed the firearms possession charge and raises serious questions as to the proper allocation of the procedural protections attendant to trial versus sentencing. We would be hard put to think of a better example of a case in which a sentence "enhancement" might be described as a "tail which wags the dog" of the defendant's offense of conviction.

Id. at 180 (citations omitted).

Mobley's and Lombard's applications of McMillan demonstrate that the focus of a proper McMillan analysis is not only whether an enhancing fact constitutes a separate crime, but, more broadly, whether that fact "constitute[s] the primary conduct for which [the defendant] is being punished." Mobley, 956 F.2d at 459 (emphasis added); see also Lombard, 72 F.3d at 178 (describing the enhancing facts— the murders—as having been "treated as the gravamen of the offense"). My dissenting colleagues' suggested due process standard (focusing only on the "separate crime" concept) is, therefore, both too broad and too narrow: it would require a heightened burden of proof in more cases than Supreme Court precedent currently supports (i.e., all "separate crime" enhancements), but at the same time would fail to require it in certain deserving cases (i.e., where "the tail wags the dog," in that the effect of the enhancement is too severe).31

Further increasing my discomfort with joining my colleagues in dissent is the Supreme Court's holding in United States v. Watts. There, the Court reversed a panel of the Ninth Circuit Court of Appeals that had held it a violation of the Double Jeopardy Clause of the Fifth Amendment for sentencing courts to factor into a defendant's sentence the conduct for which he had been acquitted. See Watts, 519