concurring:
I join the majority opinion, but write separately to point out what I believe is an important consideration. Specifically, the severity of penal consequences associated with a sentencing factor may in some cases tip the balance toward requiring heightened procedural protections in determining the applicability of that factor. Here, however, the penal consequences of the findings in question are not so severe as to merit additional safeguards when, as appears from Judge Wiggins’s opinion, other relevant factors are taken into account.
In McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), the Supreme Court observed:
Petitioners’ claim that visible possession [of a firearm during the commission of certain criminal offenses] under the Pennsylvania statute is “really” an ele*662ment of the offenses for which they are being punished — that Pennsylvania has in effect defined a new set of upgraded felonies — would have at least more superficial appeal if a finding of visible possession exposed them to greater or additional punishment, cf. 18 U.S.C. § 2113(d) (providing separate and greater punishment for bank robberies accomplished through “use of a dangerous weapon or device”), but it does not.
Id. at 88, 106 S.Ct. at 2417. Similarly, in the present case, the Sentencing Guidelines, and the findings made thereunder, have no effect on the maximum penalties authorized by statute.
But this does not conclude the inquiry regarding penal consequences. Also relevant is the quantitative effect of the sentencing factor on a defendant’s potential sentence. Of course, the Supreme Court has “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.” Id. at 84, 106 S.Ct. at 2415 (quoting Patterson v. New York, 432 U.S. 197, 214, 97 S.Ct. 2319, 2329, 53 L.Ed.2d 281 (1977)). But the quantitative effect of a sentencing factor does remain relevant in deciding what procedural safeguards are appropriate. See Mullaney v. Wilbur, 421 U.S. 684, 698, 700, 95 S.Ct. 1881, 1889, 1890, 44 L.Ed.2d 508 (1975) (“The fact remains that the consequences resulting from a verdict of murder, as compared with a verdict of manslaughter, differ significantly.... [Respondent here faces a differential in sentencing ranging from a nominal fine to a mandatory life sentence.”); Specht v. Patterson, 386 U.S. 605, 607, 610-11, 87 S.Ct. 1209, 1211, 1212-13, 18 L.Ed.2d 326 (1967) (concluding that “petitioner, having been convicted ... under one Colorado statute that carries a maximum sentence of 10 years” may not be “sentenced under [another Colorado statute] for an indeterminate term of from one day to life without notice and full hearing”); see also McMillan, 477 U.S. at 87, 106 S.Ct. at 2416.
Thus, in the present case, it is relevant not only that the Sentencing Guidelines did not alter the statutory maximum of the penalty to which Restrepo was subject, but also that the sentencing factor here in question did not drastically affect the Guidelines range to which Restrepo was otherwise subject. Although the factor in question raised Restrepo’s Guidelines range, the increase is not within the realm to which the Mullaney and Specht decisions allude. Cf. United States v. Kikumura, 918 F.2d 1084, 1101-02 (3d Cir.1990) (concluding that, at a minimum, findings leading to a “twelve-fold, 330-month departure from the median of an applicable guideline range” must be made by clear and convincing evidence); United States v. Townley, 929 F.2d 365, 369-70 (8th Cir.1991) (recognizing that elevated standard of proof might apply where sentencing factor results in “18-level increase in [the] base offense level and a seven-fold increase in the permissible sentencing range”); United States v. St. Julian, 922 F.2d 563, 569 n. 1 (10th Cir.1990) (directing trial courts to consider the appropriate standard of proof when “the difference between the guideline range and the departure sentence is great”).1 This realm may not be so *663remote when a prosecutor takes inordinate advantage of the “dubious invitation” presented by Guidelines section 1B1.3 by “ ‘indictpng] for less serious offenses which are easy to prove and then ex-pandpng the charges] in the probation office.’ ” United States v. Ebbole, 917 F.2d 1495, 1501 (7th Cir.1990) (quoting United States v. Miller, 910 F.2d 1321, 1332 (6th Cir.1990) (Merritt, C.J., dissenting), cert. denied, — U.S. -, 111 S.Ct. 980, 112 L.Ed.2d 1065 (1991)); see also Harmelin v. Michigan, — U.S. -, 111 S.Ct. 2680, 2718 & n. 6, 115 L.Ed.2d 836, 853 & n. 6 (1991) (White, J., dissenting); United States v. Payne, 940 F.2d 286, 293 (8th Cir.1991) (Heaney, J., concurring in part and dissenting in part).
. The Supreme Court recently stated in passing that
a person who has been [duly] convicted is eligible for, and the court may impose, whatever punishment is authorized by statute for his offense, so long as that penalty is not cruel and unusual, and so long as the penalty is not based on an arbitrary distinction that would violate the Due Process Clause of the Fifth Amendment.
Chapman v. United States, - U.S. -, 111 S.Ct. 1919, 1927, 114 L.Ed.2d 524 (1991) (citations omitted). This statement suggests that the quantitative effect of a sentencing factor may not be relevant in cases where the sentencing factor does not affect the maximum penalty authorized by statute. In such cases, the statement in Chapman indicates that a sentencing factor having a drastic effect on one’s sentence nevertheless yields a constitutional sentence so long as the sentence is proportionate to the crime. However, the context in which the Court made this statement precluded consideration of whether the inquiry regarding penal consequences of a Guidelines sentencing factor is relevant if a defendant possessed a liberty interest in her sentence under the Guidelines.
*663The Court’s statement in Chapman also leaves unaffected the relevance of the quantitative effect of a sentencing factor in cases where the sentencing factor will raise the maximum penalty prescribed by statute. In such cases, the quantitative effect on potential sentences may well be the deciding factor in differentiating between cases where the increase in the statutory maximum lends only "superficial appeal,” McMillan, 477 U.S. at 88, 106 S.Ct. at 2417, to a defendant’s arguments in favor of added safeguards, and cases where heightened procedural protections are indeed appropriate.