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


9-10-2007

USA v. Fisher
Precedential or Non-Precedential: Precedential

Docket No. 06-1795




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                                       PRECEDENTIAL

  UNITED STATES COURT OF APPEALS
       FOR THE THIRD CIRCUIT




                 No. 06-1795




      UNITED STATES OF AMERICA

                      v.

          TRACY LAMAR FISHER

                           Appellant


On Appeal from the United States District Court
          for the District of Delaware
          (D.C. Civil No. 05-cr-0012)
 District Judge: Honorable Gregory M. Sleet




            Argued May 7, 2007
      Before: RENDELL, JORDAN and
        HARDIMAN, Circuit Judges.

         (Filed: September 10, 2007)
Edson A. Bostic (Argued)
Eleni Kousoulis
Office of Federal Public Defender
704 King Street
First Federal Plaza, Suite 110
Wilmington, DE 19801

       Attorneys for Appellant

Ilana H. Eisenstein (Argued)
Office of United States Attorney
1007 North Orange Street, Suite 700
Wilmington, DE 19801

       Attorneys for Appellee




                 OPINION OF THE COURT


HARDIMAN, Circuit Judge.

        This case presents the question we left open in our en
banc decision in United States v. Grier, 

(3d Cir.
2007) (Grier II): does United States v. Kikumura, 

(3d Cir. 1990), remain good law in light of the Supreme Court’s
landmark decision in United States v. Booker, 

, 

, 

(2005)? We hold that it does not.



                                 2
                               I.

       On the evening of January 15, 2005, Detectives Jeffrey
Silvers and Andrea Janvier were patrolling Wilmington,
Delaware in a marked police car when a visibly shaken
pedestrian approached their vehicle. The pedestrian informed
the detectives that two men – who were later identified as
Defendant Tracy Lamar Fisher and Rashee Lamont Hunter –
had attempted to rob him at gunpoint.

       Detectives Silvers and Janvier observed the suspects from
their patrol car and followed them until they went out of sight.
The detectives then parked their patrol car, proceeded on foot
until they located the suspects, and ordered them to stop.
Instead of obeying the order, the suspects fled and a chase
ensued with Hunter in the lead, Fisher behind him, and
Detective Silvers leading Detective Janvier in pursuit. Silvers
was able to tackle Fisher and take him into custody.

       On February 22, 2005, a grand jury sitting in the District
of Delaware returned a one-count indictment charging Fisher
with unlawful possession of a firearm by a convicted felon, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Fisher
pleaded guilty to the charge on July 19, 2005. The Probation
Office issued its Presentence Investigation Report (PSR), which
set forth the circumstances surrounding Fisher’s arrest. The
Probation Office recommended that Fisher’s total offense level
be enhanced four levels pursuant to United States Sentencing
Guidelines Manual (USSG) § 2K2.1(b)(5) for possession of a
firearm in relation to another felony (attempted robbery in the
first degree).     As an alternative ground for the same

                               3
enhancement, the Probation Office noted that Fisher’s conduct
constituted aggravated menacing and reckless endangering, both
of which are class E felonies under Delaware law. The PSR
also recommended a six-level enhancement under USSG
§ 3A1.2(c)(1) for creating a substantial risk of serious bodily
injury by assaulting a law enforcement officer during the flight
from an offense. Finally, the PSR recommended a two-level
enhancement pursuant to USSG § 2K2.1(b)(4) because the
firearm was stolen.

       Fisher challenged these enhancements, so the District
Court held an evidentiary hearing on October 17, 2005. At the
hearing, only Detective Silvers testified regarding the
circumstances of the arrest. According to Silvers, Fisher pointed
the gun at him and began to pull the trigger during the chase.
The District Court found Silvers’s testimony credible as it was
“uncontradicted by any other evidence . . . that Fisher did not
simply withdraw the gun from his waistband and discard it. At
the very least, he moved the barrel of the .38 toward Silvers in
a threatening fashion.” In light of this factual finding, the
District Court determined that Fisher’s actions constituted
aggravated menacing in violation of 11 Del. Code § 602(b).
Moreover, the government proved that Fisher possessed a
firearm in connection with the felony of reckless endangering in
violation of 11 Del. Code § 604. Accordingly, the District Court
imposed a four-level enhancement under USSG § 2K2.1(b)(5)
for use of a firearm in connection with another felony. The
District Court also imposed a six-level enhancement under
USSG § 3A1.2(c)(1) because Fisher intended to cause bodily
injury to a known law enforcement officer when he started to
apply pressure to the trigger of his firearm while pointing it at

                               4
Silvers. Finally, the District Court found that Fisher’s firearm
was stolen and imposed a two-level enhancement pursuant to
USSG § 2K2.1(b)(4).

       On January 10, 2006, the District Court filed an opinion
in which it found the facts necessary to support the two-, four-,
and six-level enhancements by a preponderance of the evidence.
See United States v. Fisher, 

, 792-99 (D.
Del. 2006). Consequently, Fisher’s adjusted total offense level
was 29, his criminal history category was III, and his advisory
Guidelines range was 108-120 months. 

The District
Court sentenced him to 108 months in prison.

                               II.

        We have jurisdiction pursuant to 18 U.S.C. § 3742 and 28
U.S.C. § 1291. Because we review a challenge to a precedent
of this Court, we must decide whether Kikumura remains good
law in light of subsequent Supreme Court rulings. See Mennen
Co. v. Atlantic Mut. Ins. Co., 

, 294 n.9 (3d Cir.
1998) (a panel of this Court may overrule the holding of a prior
panel which conflicts with intervening Supreme Court
precedent). The issue before us is straightforward. Does the
Due Process Clause of the Fifth Amendment require a district
court to find facts supporting sentencing enhancements by more
than a preponderance of the evidence?         In Kikumura, we
recognized that the preponderance standard is generally
appropriate, but held that when the enhancements are so
substantial as to constitute “the tail that wags the dog” of the
defendant’s sentence, the facts underlying those enhancements
must be established by clear and convincing evidence.

                               5


. Despite the straightforward
nature of the question presented, the law of sentencing has been
so substantially transformed since we decided Kikumura that
extensive discussion of the question is required.

        Fisher filed his timely notice of appeal on March 7, 2006.
Three months later, a panel of this Court decided United States
v. Grier, 

(3d Cir. 2006) (Grier I). In Grier I, the
defendant drew and pointed a handgun at another man during an
altercation over a stolen bicycle. 

The sentence
the district court imposed was based in part upon its finding that
a preponderance of the evidence supported the application of
USSG § 2K2.1(b)(5), which provided a four-level enhancement
for the use of a firearm during a crime. See 

We
agreed to hear Grier en banc and, at the request of counsel,
deferred disposition of Fisher’s case until the full Court decided
Grier II.

       On February 7, 2007, we held in Grier II that factors
affecting sentencing need only be proved by a preponderance of
the evidence, even when those facts would constitute a separate
offense. Grier 

. Because the sentence Grier
received – 108 months – remained within his unenhanced
Guidelines range (108-120 months), we found it unnecessary to
rule on the continued viability of Kikumura. 

n.8.

       In the wake of Grier II, Fisher and the government filed
supplemental briefs. Fisher acknowledges our statement in
Grier II that “the right to proof beyond a reasonable doubt does
not apply to facts relevant to sentencing enhancements under an
advisory Guidelines regime.” 

Yet Fisher asserts that

                                6
Grier II leaves Kikumura undisturbed because the panel’s
decision in Grier I was vacated and Booker was decided based
on the Sixth Amendment, whereas Fisher raises a Fifth
Amendment due process claim. Relying on Kikumura, Fisher
maintains that the District Court violated his constitutional right
to due process of law when it trebled his sentence based on
sentencing factors found by a preponderance of the evidence.

       In response to Fisher, the government presses three
arguments. First, Grier II holds that district courts are permitted
to find facts relevant to sentencing by a preponderance of the
evidence. Second, Kikumura is no longer good law after
Booker. Finally, even if Kikumura were good law, it would not
control Fisher’s case because Kikumura dealt with departures,
not enhancements, and the enhancements in Fisher’s case —
which resulted in an approximately threefold increase in his
sentence — were not as extreme as they were in Kikumura,
where they produced a nearly twelvefold increase in the
defendant’s sentence.

       Before we address the parties’ arguments, a review of the
history of due process at sentencing is appropriate. As we
explain, a criminal defendant’s due process rights at sentencing
encompass those rights set forth in the Supreme Court
jurisprudence which discussed due process at sentencing in the
pre-Guidelines era, as well as those rights set forth in the
Guidelines themselves, as courts have interpreted them.
Because Fisher was sentenced in 2006, those cases interpreting
the scope of a criminal defendant’s rights under mandatory
sentencing regimes — while informative as an historical matter


                                7
— are less pertinent than those decided after Booker, which held
in 2005 that the Guidelines are merely advisory.

                               III.

       Until the nineteenth century, most criminal laws provided
for fixed statutory sentences. See Note, The Admissibility of
Character Evidence in Determining Sentence, 9 U. Chi. L. Rev.
715 (1942). During the 1800s, however, legislatures began to
eschew fixed-term sentences in favor of statutory schemes that
gave judges discretion to sentence within a permissible range.
See Apprendi v. New Jersey, 

, 481, 

,

(2000) (citation omitted). Although
defendants possessed a right of allocution under English
common law as early as 1689, see Green v. United States, 

, 304, 

, 

(1961) (plurality
opinion), for centuries it remained unclear what other rights, if
any, they possessed at sentencing.

       By the twentieth century, the transition from legislatively-
fixed sentences to sentences imposed after the exercise of
judicial discretion began to implicate procedural concerns, some
of which would become the subject of constitutional challenges.
In 1948, the Supreme Court granted habeas corpus relief to a
petitioner who had been sentenced to “ten to twenty in the state
penitentiary” after a sentencing hearing where he was
unrepresented by counsel and the sentencing judge made
material errors in recounting his criminal history. See Townsend
v. Burke, 

, 

, 

(1948).
In Townsend, the Court explained that due process protected a
defendant from “the careless or designed pronouncement of

                                8
sentence on a foundation so extensively and materially false,
which the prisoner had no opportunity to correct by the services
which counsel would provide.” 

At the same time,
the Court emphasized that it was “not the duration or severity of
this sentence that renders it constitutionally invalid,” and “[t]he
sentence being within the limits set by the statute, its severity
would not be grounds for relief here even on direct review of the
conviction, much less on review of the state court’s denial of
habeas corpus.” 

years after Townsend, the Supreme Court
began to define the contours of constitutional rights at
sentencing. In Mempa v. Rhay, 

, 137, 

, 

(1967), the Court held that an indigent
defendant had a Sixth Amendment right to counsel at
sentencing. In Specht v. Patterson, 

, 

, 

(1967), the Court explained that due
process protected a person who was convicted under one statute
but sentenced to a longer term of imprisonment under another
statute which required additional fact-finding by the sentencing
judge. See 

. The Specht Court stated:
“Due process . . . requires that [the convicted defendant] be
present with counsel, have an opportunity to be heard, be
confronted with witnesses against him, have the right to cross
examine, and to offer evidence of his own. And there must be
findings adequate to make meaningful any appeal that is
allowed.” 

Following Specht, the Court granted a
petition for writ of habeas corpus after a defendant’s sentence
was trebled without explanation following a remand. See North
Carolina v. Pearce, 

, 

, 

(1969), overruled in part on other grounds by Alabama v.

                                9
Smith, 

, 803, 

, 

(1989). In Pearce, the Supreme Court explained that “due
process also requires that a defendant be freed of apprehension
of . . . a retaliatory motivation on the part of the sentencing
judge.” 

       One year after Pearce, the Supreme Court decided the
landmark due process case of In re Winship, 

, 90 S.
Ct. 1068, 

(1970). Although Winship was not
a sentencing case per se, as it involved the constitutional
sufficiency of the evidence to support a criminal conviction, it
ultimately would have profound implications for sentencing
insofar as it established the due process right to be protected
“against conviction except upon proof beyond a reasonable
doubt of every fact necessary to constitute the crime with which
he is charged.” 

The Supreme Court later clarified
Winship when it held that the “facts” required to be proven
beyond a reasonable doubt were limited to the elements of the
offense charged. See Patterson v. New York, 

, 210,

, 

(1977).

       The implications of Winship and Patterson at sentencing
would not be realized for nearly three decades, however.
Following Patterson, the Supreme Court reiterated that the
process due an accused at trial differed from that due a
convicted felon at sentencing. In Gardner v. Florida, 

, 

, 

(1977) (plurality opinion),
for example, even as the Court held that a convicted felon had
a constitutional right to see, deny, and explain information used
to determine his sentence and the right to effective assistance of
counsel at sentencing, it cautioned:

                               10
       The fact that due process applies does not, of
       course, implicate the entire panoply of criminal
       trial procedural rights. Once it is determined that
       due process applies, the question remains what
       process is due. It has been said so often by this
       Court and others as not to require citation of
       authority that due process is flexible and calls for
       such procedural protections as the particular
       situation demands. Its flexibility is in its scope
       once it has been determined that some process is
       due; it is a recognition that not all situations
       calling for procedural safeguards call for the same
       kind of procedure.

See 

n.9 (citation, internal quotation
marks, and ellipses omitted). Thus, in United States v. Grayson,

, 

, 

(1978), the Court
reaffirmed the “fundamental sentencing principle” that “a judge
may appropriately conduct an inquiry broad in scope, largely
unlimited either as to the kind of information he may consider,
or the source from which it may come.” See 

(citation and internal quotation marks omitted).

        During the 1980s, the Supreme Court began identifying
substantive considerations that would render a sentence
unconstitutional. See Zant v. Stephens, 

, 885, 

, 

(1983) (improper to consider race,
religion, or political affiliation of defendant). Thus, a sentence
was acceptable as long as it was untainted by considerations of
race, gender, or similar forbidden grounds, see Jones v.
Superintendent of Rahway State Prison, 

, 43 (3d Cir.

                               11
1984), was not reached in reliance upon misinformation of
constitutional magnitude, see United States v. Matthews, 

, 51 (3d Cir. 1985), and was not imposed in violation of
a defendant’s right of allocution. See United States v. Bazzano,

, 843 (3d Cir. 1983). Nevertheless, we continued
to adhere to the general rule that only “minimal” due process
protection was required at sentencing. See United States v.
Palma, 

, 477 (3d Cir. 1985).

        Also during the 1980s, however, criminal sentencing
underwent radical change as states began reinstating systems in
which sentences were imposed by legislative command rather
than judicial discretion. This time, state legislatures began
adopting sentencing guidelines which typically bound the
sentencing judge absent grounds for departure. See Richard S.
Frase, Sentencing Guidelines in the States: Lessons for State and
Federal Reformers, 6 Fed. Sent. R. 123 (1993). In 1982,
Pennsylvania became the third state to adopt binding sentencing
guidelines. Four years later, the Supreme Court considered
whether those guidelines — the Mandatory Minimum
Sentencing Act — ran afoul of due process by treating
possession of a firearm as a sentencing factor that a judge could
find by a preponderance of the evidence, rather than as an
element of the offense that a jury must find beyond a reasonable
doubt before conviction. See McMillan v. Pennsylvania, 

, 

, 

(1986). After noting
that it previously had “rejected the claim that whenever a State
links the severity of punishment to the presence or absence of an
identified fact the State must prove that fact beyond a reasonable
doubt,” 

(citation and internal quotation marks omitted),
the Supreme Court held that Pennsylvania could treat possession

                               12
of a firearm as a sentencing factor. 

The Court then
held it constitutional for a judge to find such sentencing factors
by a preponderance of the evidence — and not by clear and
convincing evidence, as the petitioners had argued — explaining
that “[w]e have some difficulty fathoming why the due process
calculus would change simply because the legislature has seen
fit to provide sentencing courts with additional guidance.” 

        Meanwhile, inspired by the proliferation of some of the
states’ fledgling guideline systems, the United States Sentencing
Commission was hard at work crafting sentencing guidelines for
federal offenders that became law in November 1987. See
United States Sentencing Comm’n, Federal Sentencing
Guidelines Manual (1988). As then-Judge Breyer explained, the
experts whose input shaped the ultimate form that the
Guidelines would take hailed from different schools of thought:

       Some experts urged the adoption of a pure, or a
       nearly pure, “charge offense” system. Such a
       system would tie the punishments directly to the
       offense for which the defendant was convicted.
       One would simply look to the criminal statute, for
       example, bank robbery, and read off the
       punishment provided in the sentencing guidelines
       . . . . The principal difficulty with a presumptive
       sentencing system is that it tends to overlook the
       fact that particular crimes may be committed in
       different ways, which in the past have made, and
       still should make, an important difference in
       terms of the punishment imposed . . . . Thus,

                               13
unless the statutes are rewritten to make such
distinctions, the sentencing court is asked to look,
at least in part, at what really happened under the
particular factual situation before it.

A “real offense” system, in contrast, bases
punishment on the elements of the specific
circumstances of the case. Some experts have
argued for guidelines close to a pure “real
offense” system, where each added harm that the
offender brought about would lead to an increase
in the sentence. The proponents of such a system,
however, minimize the importance of the
procedures that the courts must use to determine
the existence of the additional harms, since the
relevant procedural elements are not contained in
the typical criminal statute . . . . There must be a
post-trial procedure for determining such facts.
M aking such post-trial procedures
administratively manageable is difficult.
Typically, courts have found post-trial sentencing
facts without a jury and without the use of such
rules of evidence as the hearsay or best evidence
rules, or the requirement of proof of facts beyond
a reasonable doubt.

Of course, the more facts the court must find in
this informal way, the more unwieldy the process
becomes, and the less fair that process appears to
be. At the same time, however, the requirement
of full blown trial-type post-trial procedures,

                        14
       which include jury determinations of fact, would
       threaten the manageability that the procedures of
       the criminal justice system were designed to
       safeguard.

See Stephen Breyer, The Federal Sentencing Guidelines and the
Key Compromises upon Which They Rest, 17 Hofstra L. Rev. 1,
9-11 (1988) (emphasis in original) (footnotes omitted).
Accordingly, through the Guidelines, Congress attempted to
synthesize the administrative facility of a “charge offense”
system with the substantive fairness of a “real offense” regime:

       The upshot is a need for a compromise. A
       sentencing guideline system must have some real
       elements, but not so many that it becomes
       unwieldy or procedurally unfair.                The
       Commission’s system makes such a compromise.
       It looks to the offense charged to secure the “base
       offense level.” It then modifies that level in light
       of several “real” aggravating or mitigating factors,
       (listed under each separate crime), several “real”
       general adjustments (“role in the offense,” for
       example) and several “real” characteristics of the
       offender, related to past record.

(emphasis in original) (footnotes omitted). “It is
difficult to contend, therefore, that either a pure unmixed
‘charge’ or ‘real offense’ system would achieve the
Commission’s objectives.” 

                               15
       One of the most important features of the original
Guidelines was that sentencing within the Guidelines range was
mandatory. See 18 U.S.C.A. § 3553(b) (West 1985 & Supp.
1988); see also Mistretta v. United States, 

, 367,

, 

(1989); United States v. Uca,

, 786 (3d Cir. 1989). Notwithstanding the
mandatory nature of the Guidelines, the Supreme Court noted
that sentences were susceptible of appellate review:

       Before the Guidelines system, a federal criminal
       sentence within statutory limits was, for all
       practical purposes, not reviewable on appeal. The
       Act altered this scheme in favor of a limited
       appellate jurisdiction to review federal sentences.
       Among other things, it allows a defendant to
       appeal an upward departure and the Government
       to appeal a downward one.

Koon v. United States, 

, 96, 

, 135 L.
Ed. 2d 392 (1996) (citations omitted). Accordingly, the
Guidelines permitted the defendant to appeal if his sentence was
imposed in violation of law, resulted from an incorrect
application of the Guidelines, exceeded the sentence specified
in the applicable Guidelines range, or was imposed for an
offense for which there was no sentencing guideline and was
“plainly unreasonable.”        See 18 U.S.C.A. § 3742(a).
Additionally, the sentencing court was required to contemplate
various policy objectives in reaching its sentence, see 18 U.S.C.
§ 3553(a), and to articulate reasons for the sentence it imposed
to provide the reviewing court a principled means of


                               16
ascertaining whether an abuse of discretion had occurred. See
18 U.S.C. § 3553(c).

       The foregoing constraints added by the Guidelines, along
with the due process protections that the Court had recognized
since the late 1940s, constituted the full panoply of rights that a
federal criminal defendant enjoyed at sentencing by the 1990s.
Such was the state of the law at the time we decided United
States v. Kikumura, 

(3d Cir. 1990), to which we
now turn.

                               IV.

       Kikumura was convicted of twelve explosives and
passport offenses which resulted in a Guidelines range of 27 to
33 months in prison. See 

. At the
conclusion of the sentencing hearing, however, the district court
found that a statutory maximum sentence of 360 months was
warranted because Kikumura had made three firebombs in
preparation for a terrorist bombing on American soil. 

        Quoting then-Judge Breyer’s law review article on the
subject of the compromise between a charge-offense system and
a real-offense system that the Guidelines instantiated, we wrote:

       Perhaps like no case ever before reported, this one
       illustrates both the utility of, and the dangers in,
       real offense sentencing — a system that metes out
       punishment on the basis of a defendant’s actual
       conduct in a particular case. Such a system

                                17
       recognizes that particular crimes may be
       committed in different ways, which in the past
       have made, and still should make, an important
       difference in terms of the punishment imposed.
       Because criminal statutes have never been (and
       probably never could be) written with sufficient
       particularity to take all such factors into account,
       a system of pure charge offense sentencing — one
       that metes out punishment solely on the basis of
       the offense of conviction — would necessarily
       abstract away considerations obviously relevant in
       determining an appropriate sentence.

(citation and internal quotation marks omitted).
Although real offense sentencing was a “practical necessity,” it
“could create the potential for significant unfairness” insofar as
the procedural protections at sentencing were “significantly
lower than those applicable at the trial itself.” 

Because the sentence Kikumura received was approximately 12
times that prescribed by the Guidelines, we held that the trial
court was required to find sentencing facts by more than a mere
preponderance of the evidence. See 

We concluded:

       McMillan held that a preponderance standard was
       generally constitutional but suggested that a
       different question would be presented if the
       magnitude of a contemplated departure was
       sufficiently great that the sentencing hearing can
       be fairly characterized as a tail which wags the
       dog of the substantive offense . . . . For the
       reasons explained above, we hold that in such

                               18
       situations, the factfinding underlying that
       departure must be established at least by clear and
       convincing evidence.

(citation and internal quotation marks omitted).
Significantly, however, we were careful to note that “the clear
and convincing standard is, under these circumstances, implicit
in the statutory requirement [of now-excised § 3553(b)(1)] that
a sentencing court ‘find’ certain considerations in order to
justify a departure . . . .” 

Thus, in Kikumura we
specifically “reserve[d] judgment on the question whether [the
clear and convincing standard] is also implicit in the due process
clause itself.” 

1990s, we required district courts to
sentence a convicted defendant within the Guidelines range set
forth for his particular crime — after accounting for all of the
attendant circumstances — reversing them whenever they failed
to adhere to the mandate of § 3553(b). See United States v.
Bierley, 

, 1067 (3d Cir. 1990); see also United
States v. Johnson, 

, 241 (3d Cir. 1991); United
States v. Bertoli, 

, 1408 (3d Cir. 1994); United
States v. Felton, 

, 866 (3d Cir. 1995); United States
v. Schwegel, 

, 553 (3d Cir. 1997). During that era,
we also followed Kikumura, usually taking care to note that its
application went hand-in-hand with the then-mandatory force of
the Guidelines. See, e.g., United States v. Mack, 

,
233 (3d Cir. 2000) (observing that the clear and convincing
standard “was required in light of 18 U.S.C. § 3553(b)’s
directive that the sentencing court ‘find’ certain considerations
to justify a departure.”) (footnote omitted); see also United

                               19
States v. Murray, 

, 275 (3d Cir. 1998) (citing
Kikumura’s “tail which wags the dog” standard in tandem with
18 U.S.C. § 3553(b)).

       Because 18 U.S.C. § 3553(b) remained in full force
throughout the 1990s, we did not have occasion to consider
whether due process required a higher burden of proof in similar
circumstances. Rather than resolve this issue, in reaffirming
McMillan, the Supreme Court declined to decide whether a
higher burden of proof may be required for some sentencing
facts. See United States v. Watts, 

, 156-57, 117 S.
Ct. 633, 

(1997) (per curiam) (citing Kikumura
and noting a conflict among courts of appeals regarding
“whether, in extreme circumstances, relevant conduct that would
dramatically increase the sentence must be based on clear and
convincing evidence” but declining to resolve that split).

        In the late 1990s, criminal defendants argued that judges
applying mandatory sentencing guidelines by a preponderance
of the evidence were making factual findings which, in effect,
increased their total sentences beyond the statutory maximum
for the crimes of which they were convicted. In Apprendi, the
Supreme Court considered whether New Jersey’s hate-crime
statute — which authorized a sentence above the statutory
maximum if the judge found that the crime had been committed
“with a purpose to intimidate” because of race or other factors
— was consistent with the principles established in Winship.

. The Court held the New Jersey
statute unconstitutional under the Fifth and Sixth Amendments,
stating: “Other than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory

                               20
maximum must be submitted to a jury, and proved beyond a
reasonable doubt.” 

The Court noted the limits of its
holding, however:

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

(emphasis in original) (citing Williams v. New York,

, 246, 

, 

(1949)).

       Two Terms later, the Court was asked to determine
whether McMillan survived Apprendi when it considered anew
the question whether judicial factfinding triggering mandatory
minimum sentences violated the Constitution. In Harris v.
United States, 

, 

, 

(2002) (plurality opinion), the Court reaffirmed McMillan’s
holding, explaining that even after Apprendi judges could
continue to find facts which triggered mandatory minimum
sentences. In so doing, the Court underscored the distinction
between “sentencing factors” that a judge could find by a
preponderance of the evidence, and “elements” which were
required to be submitted to a jury and found beyond a reasonable
doubt:


                              21
       [N]ot all facts affecting the defendant’s
       punishment are elements. After the accused is
       convicted, the judge may impose a sentence
       within a range provided by the statute, basing it
       on various facts relating to the defendant and the
       manner in which the offense was committed.
       Though these facts may have a substantial impact
       on the sentence, they are not elements, and thus
       not subject to the Constitution’s indictment, jury,
       and proof requirements. Some statutes also direct
       judges to give certain weight to certain facts when
       choosing the sentence. The statutes do not require
       these facts, sometimes referred to as sentencing
       factors, to be alleged in the indictment, submitted
       to the jury, or established beyond a reasonable
       doubt.

Harris, 

. In sum: “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.”

(citation and internal quotation marks omitted)
(emphasis in original).

       The boundary established by Harris was tested in
challenges to mandatory sentencing laws in two states. In Ring
v. Arizona, 

, 

, 

(2002), the Supreme Court applied Apprendi to hold
unconstitutional an Arizona law which authorized the death
penalty if the judge found a single aggravating factor. 

Likewise, in Blakely v. Washington, 

, 124

                               

, 

(2004), the Court held
unconstitutional a Washington law which permitted a judge to
exceed the relevant maximum penalty for kidnaping if the
defendant acted with “deliberate cruelty.” 

       Just one term after Blakely, the Court established a new
sentencing paradigm in Booker, a decision that resulted in two
separate 5-4 majority opinions. In the first part of its opinion,
the Court held that Booker had been deprived of his Sixth
Amendment right to trial by jury when he received a sentence
over eight years greater than the top of his original Guidelines
range based on facts found by the District Court by a
preponderance of the evidence. See 

(Stevens, J.). Rather than hold the entire Guidelines scheme
unconstitutional, however, in the second part of its opinion the
Court held that 18 U.S.C. § 3553(b)(1) — the provision which
made the Guidelines mandatory — was unconstitutional, and
severed this provision from the statute. See 

(Breyer,
J.). The Court observed that its ruling made “the Guidelines
effectively advisory,” 

-46, and explained:

       The remainder of the Act “functions
       independently.”      Without the “mandatory”
       provision, the Act nonetheless requires judges to
       take account of the Guidelines together with other
       sentencing goals. The Act nonetheless requires
       judges to consider the Guidelines “sentencing
       range established for . . . the applicable category
       of offense committed by the applicable category
       of defendant,” the pertinent Sentencing
       Commission policy statements, the need to avoid

                               23
       unwarranted sentencing disparities, and the need
       to provide restitution to victims[.] And the Act
       nonetheless requires judges to impose sentences
       that reflect the seriousness of the offense, promote
       respect for the law, provide just punishment,
       afford adequate deterrence, protect the public, and
       effectively provide the defendant with needed
       educational or vocational training and medical
       care.

(citations and alterations omitted)
(emphasis added) (citing Section 3553(a)). After Booker, as
before it, appellate courts are required to apply Section 3553(a)
“in determining whether a sentence is unreasonable.” 

       Such was the state of the law at the time we considered
Grier II en banc. We now turn to Fisher’s argument that the
Due Process Clause of the Fifth Amendment required the
sentencing Court to find the facts supporting the enhancements
by more than a mere preponderance of the evidence.

                                V.

       As Fisher notes, the “facts of Grier are remarkably
similar to this case.” Both cases applied the four-level
enhancement of USSG § 2K2.1(b)(5) after the trial judge found
by a preponderance of the evidence that the defendant pointed
a handgun at another person during the commission of a felony.
In Grier II, we stated that “[j]udicial factfinding in the course of
selecting a sentence within the permissible [Guidelines] range
does not offend the Fifth and Sixth Amendment rights to a jury

                                24
trial and proof beyond a reasonable doubt.” Grier 

. Insofar as Booker rendered the Guidelines advisory, we
reasoned that “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.” 

Because “[n]one of the facts relevant to enhancements or
departures under the Guidelines can increase the maximum
punishment to which the defendant is exposed,” 

we explained that they need not be proven beyond a reasonable
doubt. We concluded: “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 government argues that Grier II overruled Kikumura.
A majority of the original three-judge panel in Grier I had
overruled Kikumura to the extent that it had relied on
McMillan’s “tail wagging the dog” metaphor to impose a higher
standard of proof for sentencing facts which resulted in a large
impact on the overall sentence. See Grier 

(the
basis of McMillan’s “tail wagging the dog” concern was
disavowed by the Supreme Court in Blakely). The en banc
panel in Grier II brought Kikumura back from the grave but, for
all intents and purposes, left it on life-support, explaining:
“While we acknowledge that the statutory and constitutional
underpinnings of [Kikumura] may be questioned by the Supreme
Court’s reasoning in Booker, this case does not present a
factually similar case to Kikumura” because “there was
ultimately no departure from the [initial] recommended
Guidelines range.” See Grier 

n.8.

                               25
Accordingly, we found that it was “not necessary for us to reach
the current status of Kikumura.” 

case, however, the issue is unavoidable.
Unlike Grier, Fisher was sentenced to a term of imprisonment
almost three times greater than the top of his unenhanced
Guidelines range. Thus, we must ask: did Kikumura require the
District Court to apply an elevated burden of proof to support its
imposition of the enhancements which comprised the lion’s
share of Fisher’s sentence? In light of Booker and Grier II, the
answer to this question is “no.”

        As Grier II made plain, under an advisory system “[f]acts
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.”       Grier 

.
Accordingly, sentencing judges are free to find facts by a
preponderance of the evidence, provided that the sentence
actually imposed is within the statutory range, and is reasonable.

-71; see also Rita v. United States, - - - U.S. - - - -, 

, 2462 (2007). In other words, although concerns
about the “tail wagging the dog” were valid under a mandatory
guideline system — like the Pennsylvania system addressed in
McMillan and the federal Guidelines when Kikumura was
decided — these concerns were put to rest when Booker
rendered the Guidelines advisory. For this reason, we hold that
Kikumura is no longer valid as long as the Guidelines are
advisory.



                                 26
        Although Fisher acknowledges that Kikumura’s holding
was predicated on the then-mandatory nature of the Guidelines,
he argues that we have embraced a constitutional justification
for that decision which survived the Supreme Court’s excision
of 18 U.S.C. § 3553(b) in Booker. See United States v. Conley,

(3d Cir. 1996) and United States v. Mobley, 

(3d Cir. 1992). It is true that Conley and Mobley both
characterized Kikumura as rooted in due process. See 

, 

. But whether a right
is “statutory” or “constitutional” is not the relevant question
here. Instead, the proper question is this: was that right —
whatever its provenance — infringed when Fisher was
sentenced under an advisory regime on facts found by a
preponderance of the evidence? We hold that it was not and that
due process was not infringed.

       The critical distinction here is the advisory nature of the
Guidelines under which Fisher was sentenced. A criminal
defendant sentenced under a mandatory regime — such as the
Guidelines scheme at issue in Kikumura, Conley, and Mobley —
may be entitled to additional or different process than that due
a defendant sentenced under the post-Booker advisory
Guidelines. After Booker and Grier II, however, it is clear that
sentencing on facts found by a preponderance of the evidence
does not infringe upon a defendant's rights, whether those rights
are derived from the Guidelines or the Constitution.

      In reaching this conclusion, we join the growing number
of courts to have recognized that Kikumura does not survive
Booker. For example, in United States v. Brika, 

,
460-62 (6th Cir. 2007), the Court of Appeals for the Sixth

                               27
Circuit affirmed a sentence where, as here, the district court
found the factual predicates to support enhancements by a
preponderance of the evidence — even though the
enhancements elevated Brika’s sentence beyond the original
guideline range. See 

. In so holding,
the Sixth Circuit rejected Brika’s contention that the Fifth and
Sixth Amendments required a higher standard of proof, and
explained why Kikumura’s concerns about the “tail wagging the
dog” were no longer apposite.

       Kikumura’s reasoning might have had some basis
       in due process principles under the mandatory
       guidelines regime. That is so because a defendant
       had an entitlement to be sentenced within his
       guidelines range absent circumstances justifying
       upward departure. However, after Booker, the
       only constraints on sentencing judges are the
       statutory maximum and minimum for the offense
       at issue and the sentencing statutes, particularly
       18 U.S.C. § 3553(a). [¶] Viewed in this light, [the
       defendant] could not have had a reasonable
       expectation that he would have received a
       sentence within his guidelines range absent the
       application of the various enhancements. Instead,
       he had only an entitlement to be sentenced to a
       reasonable sentence within the statutory range.

(citation omitted). As Brika makes clear, challenges
to “large enhancements . . . should be viewed through the lens
of Booker reasonableness rather than that of due process.” 

(citation omitted). We agree and, although we do not

                               28
suggest that sentencing never implicates due process — as the
foregoing history of due process at sentencing makes clear, it
does — we note that the Supreme Court has yet to define the
relationship between the due process protections applicable at
sentencing and Booker reasonableness review. We agree with
our concurring colleague that sentences based upon arbitrary or
impermissible considerations (e.g., sentencing Yankees fans
more harshly than Red Sox fans) would offend the due process
principles established since Townsend. But this does not change
the fact that since the Supreme Court’s decisions in Booker and
Rita, and this Court’s decision in Grier II, conduct relevant to
sentencing enhancements must be proven by a preponderance of
the evidence, and the resulting sentence is reviewed for
substantive reasonableness on appeal. See 

; Grier 

; Rita, 

.

      Similarly, in United States v. Reuter, 

, 793
(7th Cir. 2006), the Seventh Circuit opined that the “tail-
wagging-the-dog” debate had been “rendered academic” by
Booker, explaining:

       With the guidelines no longer binding the
       sentencing judge, there is no need for courts of
       appeals to add epicycles to an already complex set
       of (merely) advisory guidelines by multiplying
       standards of proof. The judge is cabined, but also
       liberated, by the statutory sentencing factors.
       Unlike the guidelines, they bind, but they are
       broad enough and loose enough to allow the judge
       to dip below the guidelines range if he is
       justifiably reluctant to impose a sentence most of

                              29
       which rests entirely on a finding of fact supported
       by a mere preponderance of the evidence (though
       in this case, to repeat, the evidence was
       overwhelming). Section 3553(a)(2)(A) includes
       among the factors to be considered in sentencing
       “the need for the sentence imposed . . . to reflect
       the seriousness of the offense, to promote respect
       for the law, and to provide just punishment for the
       offense.” A judge might reasonably conclude that
       a sentence based almost entirely on evidence that
       satisfied only the normal civil standard of proof
       would be unlikely to promote respect for the law
       or provide just punishment for the offense of
       conviction. That would be a judgment for the
       sentencing judge to make and we would uphold it
       so long as it was reasonable in the circumstances.

(citations omitted); see also United
States v. Vaughn, 

, 525 (2d Cir. 2005) (“[A]fter
Booker, district courts’ authority to determine sentencing factors
by a preponderance of the evidence endures and does not violate
the Due Process Clause of the Fifth Amendment.”).

       We reject Fisher’s invitation to follow United States v.
Archuleta, 

(8th Cir. 2005) and United States v.
Staten, 

, 717-18 (9th Cir. 2006), which held that
Kikumura remains good law after Booker. In Archuleta, the
Eighth Circuit reaffirmed its adherence to Kikumura, but did so
without discussion beyond the conclusory statement that Booker
had changed nothing. See 

. We
consider the reasoning of Brika and Reuter to be much more

                               30
thorough and thoughtful. In Staten, the Ninth Circuit held that,
insofar as it is still possible after Booker for a court to levy a
sentence “extremely disproportionate relative to the offense of
conviction,” a clear-and-convincing burden of proof applies.
See 

. We decline to follow Staten
because we disagree with its premise. After Booker, the
“offense of conviction” is defined by the United States Code;
thus, a reasonable sentence which does not exceed the maximum
prescribed by the Code cannot possibly be “disproportionate to
the offense of conviction.”

       We are cognizant that, even under an advisory Guidelines
regime, enhancements such as those visited upon Fisher in this
case represent an important component of the first step in
sentencing, viz., calculating the appropriate Guidelines range.
As we explained in United States v. Gunter, 

(3d
Cir. 2006):

       O]ur post-Booker precedent instructs district
       courts to follow a three-step sentencing process.
       (1) Courts must continue to calculate a
       defendant’s Guidelines sentence precisely as they
       would have before Booker. (2) In doing so, they
       must formally rule on the motions of both parties
       and state on the record whether they are granting
       a departure and how that departure affects the
       Guidelines calculation, and take into account our
       Circuit’s pre-Booker case law, which continues to
       have advisory force. (3) Finally, they are required
       to exercise their discretion by considering the
       relevant § 3553(a) factors in setting the sentence

                               31
       they impose regardless whether it varies from the
       sentence calculated under the Guidelines.

(alterations, citations, and internal
quotation marks omitted).

        Consistent with the Supreme Court’s holding in Booker,
we are confident that district judges appreciate fully the grave
responsibility they bear in sentencing the defendants who appear
before them. We also recognize that district judges are in the
best position to impose just sentences in light of their proximity
to, and familiarity with, each individual defendant. See 

. In discharging their solemn duty, district
judges are free to vary — one way or the other — from the
advisory Guidelines, provided that those variations are
reasonable under the circumstances. See 

; see also 

. If, after calculating the
appropriate Guidelines, a district judge finds that the imposition
of a within-Guidelines sentence would visit an injustice upon
the defendant pursuant to 18 U.S.C. § 3553(a), it is incumbent
upon the judge to say so, and sentence below the Guidelines
range. Conversely, when the Guidelines range is too low to
satisfy 18 U.S.C. § 3553(a), the district judge must explain why
this is so and vary upward. See 

, 2466.
In sum, because the Guidelines are now advisory and district
judges are empowered to discharge their duties fully in the first
instance, it is a logical impossibility for the “tail to wag the
dog,” as could occur when the Guidelines were mandatory.




                               32
                               VI.

        Having determined that the District Court correctly
applied a preponderance-of-the-evidence standard in finding the
factual predicates for Fisher’s sentencing enhancements, we
now examine the remainder of its sentencing procedure to
determine whether the sentence imposed was reasonable.
“[R]easonableness is a range, not a point.” See 

n.11 (citation omitted). See Grier 

. We evaluate the reasonableness of a sentence by
“review[ing] factual findings relevant to the Guidelines for clear
error and [by] exercis[ing] plenary review over a district court’s
interpretation of the Guidelines.” See Grier 

.
This is a three-step process. First, we determine whether the
sentencing court correctly calculated the Guidelines range. See

. Next, we determine whether the
trial court “considered the § 3553(a) factors and any sentencing
grounds properly raised by the parties which have recognized
legal merit and factual support in the record.” 

Finally, we “ascertain whether those factors were reasonably
applied to the circumstances of the case.” 

we
have ascertained that the District Court followed the procedure
set forth in Gunter, we review the resulting sentence to ensure
that it is substantively reasonable. See Rita, 

(noting that “when the judge’s discretionary decision accords
with the Commission’s view of the appropriate application of §
3553(a) in the mine run of cases, it is probable that the sentence
is reasonable.”); see also 

(explaining
that the substantive factors set forth in § 3553(a) “will guide
appellate courts, as they have in the past, in determining whether
a sentence is unreasonable.”).

                               33
       Although Fisher insists that the District Court should
have made its factual findings by more than a preponderance of
the evidence, he does not argue that the District Court’s factual
findings were clearly erroneous when assessed against that
standard of review. Indeed, the factual findings were well-
supported by Detective Silvers’s testimony, which the District
Court found credible, that Fisher pointed the stolen handgun at
Silvers while fleeing law enforcement. Nor does Fisher contend
that the District Court overlooked any of the § 3553(a) factors
that he contended were applicable to his situation.

        Instead, Fisher claims that his sentence was unreasonable
under 18 U.S.C. § 3553(a) because the application of both
enhancements under USSG § 2K2.1(b)(5) and § 3A1.2(c)(1)
overstates the nature and seriousness of his offense. This
argument is unpersuasive. We have recognized that the
Guidelines explicitly note when double counting is forbidden.
See United States v. Wong, 

, 670 (3d Cir. 1993).
“[O]nly when the Guidelines explicitly prohibit double counting
will it be impermissible to raise a defendant’s offense level
under one provision when another offense Guideline already
takes into account the same conduct.” 

        Our review of the pertinent Guidelines confirms that they
do not prohibit double-counting in the situation presented here.
Each of the enhancements in question involves conduct which
the other does not — Section 2K2.1 involves the use of a
firearm, whereas Section 3A1.2 involves a law-enforcement
officer victim — as other courts have found. See United States
v. Coldren, 

, 1256-57 (10th Cir. 2004) (applying
both enhancements where a defendant pointed a firearm at a

                               34
police officer); see also United States v. Jackson, 

, 1234 (11th Cir. 2001) (same, where defendant reached for
a gun during a struggle with police); United States v. Bowie, 

(D.C. Cir. 1999) (same). The fact that Section 2K2.1
is a conduct-related enhancement while Section 3A1.2 is a
victim-related enhancement undermines the double-counting
claim. See United States v. Haines, 

, 293 (7th Cir.
1994) (finding no double-counting where one enhancement was
based on the nature of the conduct, whereas another
enhancement was based on the identity of the victim).

       Apart from the proper application of the aforementioned
enhancements, there is no question that the District Court’s
sentence was reasonable. Applying the 18 U.S.C. § 3553(a)
factors, the District Court explicitly stated that it considered
Fisher’s background and age, the length of his previous
incarceration for shooting another person, and his evident
“unwillingness to comport his behavior with the norms of
society” in reaching an appropriate sentence. Indeed, the record
showed that Fisher had been imprisoned for ten years for
shooting another person in the chest during an armed robbery in
1990. Shortly after his release from prison, Fisher acquired a
stolen handgun, drove to a neighboring city, and teamed up with
Hunter (who was also armed) — evidently with the intention of
robbing passersby at gunpoint — and committed the instant
crime. When Fisher saw that police had been alerted, he fled
and, near the end of the chase, pointed the loaded handgun at
Detective Silvers. In light of the foregoing, the District Judge
explained his assessment of the § 3553(a) factors as follows:



                               35
       [T]he one [crime] that you committed in 1990 was
       of such magnitude, such an order of magnitude
       that the criminal justice system that handled that
       responded in the way that it did and incarcerated
       you, ordered your incarceration for a very
       substantial period of time. After a brief period of
       freedom . . . you came before me for this offense
       . . . . [T]he Court has concluded that under the
       circumstances, given your background, given the
       length of the previous incarceration, given your
       age, it is remarkable . . . that someone of your
       years of maturity at the time you committed this
       offense would still continue to be engaged in this
       kind of conduct . . . . So it doesn’t seem that the
       punishment that has been handed to you thus far
       has made a sufficient impression on you to cause
       you to come into compliance with the norms of
       society.

The record, including the foregoing statement, shows that
Fisher’s sentence was imposed after proper consideration of his
criminal history, his conduct during his most recent crime, and
the need “to protect society” from his criminal activity.

                              VII.

       Although the four- and six-level enhancements are the
focal point of Fisher’s appeal, he also argues that the District
Court erred when it applied the two-level stolen-firearms
enhancement pursuant to § 2K2.1(b)(4). Fisher argues that the
sentencing judge erred when he stated that the stolen weapon

                               36
enhancement was “not factoring very significantly into my
thinking as to an appropriate sentence,” but nonetheless included
that enhancement in his calculation of Fisher’s total offense
level. We disagree.

        The record does not support Fisher’s contention that the
District Court was equivocal about applying the stolen-firearms
enhancement in the first place. Rather, the record demonstrates
that, although the sentencing judge included this enhancement
at step one, he discounted the relevant conduct underlying the
enhancement in the sound exercise of his discretion when
applying the § 3553(a) factors at step three of the sentencing
process. See 

; see also Grier 

(Ambro, concurring) (observing that “nothing
about the majority’s ruling prevents a sentencing court from
taking into account the strength of the evidence (or lack thereof)
supporting a Guidelines enhancement when it considers the
§ 3553(a) factors at Gunter’s step three — especially an
enhancement that also constitutes a separate crime.”) (emphasis
in original). This was the District Court’s prerogative.

                              VIII.

       In sum, we conclude that the District Court did not err
when it found facts relevant to sentencing by a preponderance
of the evidence, its factfinding was not clearly erroneous, and
the Guidelines permitted the District Court to apply both the
four- and six-level enhancements. See Wong, 

; see
also Grier 

. We further find that the District
Court diligently considered the pertinent § 3553(a) factors and
applied them reasonably to Fisher’s particular circumstances.

                               37
See 

; see also 

-
28, 332. Finally, the District Court did not err when it
discounted the stolen gun enhancement as part of its § 3553(a)
analysis. Accordingly, we will affirm the judgment of the
District Court.

RENDELL, Circuit Judge, concurring.

        I agree with the majority that our narrow holding in
United States v. Kikumura, 

, 1102 (3d Cir. 1990),
that 18 U.S.C. § 3553(b) requires a court to find sentencing
facts that result in a massive upward departure by clear and
convincing evidence, has no relevance in the post-Booker world
given that 18 U.S.C. § 3553(b) has been excised from the
Sentencing Reform Act. See United States v. Booker, 

, 245 (2005). However, our decision in Kikumura to require
a heightened standard of proof at sentencing in certain
circumstances addressed a due process concern that I submit
still exists. A defendant’s due process rights are implicated
when facts found by a judge under a preponderance standard
concerning a separate, uncharged crime result in a dramatic
increase in the sentence actually imposed on the defendant for
the crime of conviction, so as to suggest that the defendant is
really being sentenced for the uncharged crime rather than the
crime of conviction. See United States v. Grier, 

,
573 (3d Cir. 2007) (Rendell, J., concurring). Writing for the
court in Kikumura, Judge Becker noted the increase in
Kikumura’s sentence from about 30 months to 30 years,
resulting from the judge’s finding that Kikumura intended to
commit multiple, uncharged murders, and observed: “In this
extreme context, we believe, a court cannot reflexively apply

                              38
the truncated procedures that are perfectly adequate for all of
the more mundane, familiar sentencing determinations.”

. This statement rings true today,
wherever such an “extreme context” repeats itself. Thus, it is
still possible even under the current advisory Guidelines regime
for a defendant’s due process rights to be violated at sentencing
when findings concerning collateral conduct become the “tail
which wags the dog of the substantive offense.” 

(quoting McMillan v. Pennsylvania, 

, 88 (1986)).

      Judge Rosenn, in his concurrence in United States v.
Kikumura, described a set of circumstances that would raise
such due process concerns:

       Suppose the police apprehend a man who is
       driving recklessly with the intention to meet
       others in a robbery conspiracy. State officials
       only charge and convict the man with violating
       traffic ordinances, but at the man’s sentencing
       hearing argue that the underlying motive for the
       man’s speeding was participation in a robbery at
       another end of town. The sentencing judge finds
       the state’s evidence convincing and sentences the
       defendant as if he had been convicted of
       conspiracy to commit a robbery.

(Rosenn, J., concurring).

       The transition from the mandatory Guidelines regime in
place at the time that Kikumura was sentenced to the current

                               39
advisory one alters, but does not eliminate, the potential for due
process concerns to arise at sentencing. While, admittedly, the
sentencing landscape has changed since Kikumura was decided,
I do not agree that the advent of the advisory Guidelines regime
is all that relevant to the due process issue before the court in
Kikumura or before us here. The absence of a legally mandated
relationship between a judge’s finding that the defendant
committed a separate, uncharged crime and the imposition of a
substantially longer term of imprisonment does not eliminate
the need for a court to safeguard a defendant’s due process
rights at sentencing. As Justice Stevens pointed out in his
concurrence in United States v. Rita, 

(2007), an
otherwise-permissible sentence may be unreasonable if it is
imposed for an impermissible reason. 

(Stevens, J., concurring) (“After all, a district judge who gives
harsh sentences to Yankees fans and lenient sentences to Red
Sox fans would not be acting reasonably even if her procedural
rulings were impeccable.”). Even though judges are no longer
bound to impose a sentence within the Guidelines sentencing
range, they must not violate a defendant’s constitutional rights
by sentencing based on unconstitutional considerations.

       At sentencing, a court may take into consideration facts
about the offender and the offense of conviction, even if such
facts also constitute elements of a separate offense. See

. However, the defendant’s right to
due process is implicated when it appears that a defendant is
being sentenced primarily for a crime other than the crime of
conviction, such as when the defendant’s sentence is based
predominantly on criminal conduct collateral to the crime of
conviction. See 

; Kikumura, 

at 1120 (Rosenn, J., concurring) (“[B]ecause of the extreme
departure involved here for the separate offense of attempted
murder, it seems evident that the Government and the sentencing
judge did not consider Kikumura's attempt to kill as collateral
but primary.”); 

(Rendell, J., concurring)
(“The spectre of another “crime” impacting [a defendant’s]
sentence would be troublesome from a due process standpoint
only if we were concerned that [the] sentence was in fact based
predominantly on conduct wholly collateral to his convicted
crime.”).

       The difficulty comes in determining when a court is
impermissibly sentencing a defendant primarily for uncharged,
unproven criminal conduct, rather than merely considering
uncharged conduct in imposing sentence for the offense of
conviction. Here, the dramatic difference between Fisher’s
unenhanced Guidelines sentencing range for the possession
crime alone, and the sentence actually imposed, raises the
possibility that the assault was given primary consideration at
sentencing.

        However, I concur in the judgment affirming Fisher’s
sentence because, based on the record before us, I do not find
reason to believe that Fisher’s sentence was based
predominantly on the collateral criminal conduct. The District
Court clearly gave consideration to all of the § 3553(a) factors
at sentencing and did not place undue reliance on the uncharged
assault or on the Guidelines sentencing range that factored in the
uncharged assault in arriving at the sentence actually imposed.
The Court stated: “Mr. Fisher, after having considered the
provisions of the United States Sentencing Guidelines, the

                               41
advisory guideline range, the Supreme Court’s ruling in United
States versus Booker, the sentencing factors outlined in Title 18
United States Code, Section 3553, and the underlying goals of
sentencing, which are many, but include punishment, deterrence,
rehabilitation, respect for the law, I am sentencing you to 108
months of imprisonment.” App. 160. The Court made no
mention of the assault on Detective Silvers when imposing
sentence. In fact, early in the sentencing hearing, the District
Court noted that “this isn’t purely guideline analysis anymore,
counsel,” in response to defense counsel’s argument that
omitting the stolen firearm enhancement would lower the
Guidelines sentencing range. App. 151. The Court added: “I
am going to look as I am permitted to, under the current state of
the law, under the current standard, that the Supreme Court has
said is the standard, I am going to look at all of the factors to
which I am entitled to look.” 

the District Court clearly understood that
possession was the crime of conviction and, unlike in Kikumura,
the enhancements to Fisher’s base offense level were made
pursuant to particular guidelines, rather than arrived at as part of
the court’s exercise of discretion to depart from the Guidelines
range once the range was calculated. There is nothing in the
District Court’s written decision or in its remarks at sentencing
that would suggest that the Court was covertly sentencing Fisher
for assault rather than gun possession. Accordingly, although I
do not agree with the majority’s view that Kikumura’s concern
for the “tail wagging the dog” scenario no longer has relevance
post-Booker, I concur in the judgment affirming Fisher’s
sentence.


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