with whom HUG, PREGERSON, and D.W. NELSON, Circuit Judges, join, dissenting:
Appellant was charged with and found guilty of two separate sales of cocaine. His codefendant was charged with and pled guilty to two other sales of cocaine. At appellant’s sentencing, the district court made findings of fact that appellant had participated in the two sales of cocaine charged to his codefendant. Under the Sentencing Guidelines, see U.S.S.G. § lB1.3(a)(2), these sentencing findings triggered an automatic increase in appellant’s sentence from the Guidelines range of 27-33 months for the sales proved at trial, to a Guidelines range of 41-51 months for the sales proved at sentencing.
The Guidelines do not specify the standard of proof applicable to factfinding at sentencing. Rather, Congress and the Sentencing Commission have left that issue for the courts to resolve. In upholding appellant’s sentence, the majority announces a broad rule that all factfinding in Guidelines sentencing hearings is governed by the preponderance of evidence standard. The majority then applies the rule to this case, notwithstanding that the facts proved at sentencing constituted elements of a separate crime for which appellant was neither charged nor convicted. In so doing, the majority decides that once a defendant is convicted for one crime, his sentence may be increased for other crimes regardless of whether they are proved beyond a reasonable doubt at trial or merely by a preponderance of the evidence at sentencing.
I dissent because the majority’s interpretation of the Sentencing Reform Act as adopting the preponderance standard for proving separate crimes at sentencing raises two serious constitutional questions that can and should be avoided. A higher standard of proof would not only avoid the constitutional questions, but would better serve the purposes of the Sentencing Reform Act.
In allowing, for the first time, separate crimes to be used as sentencing factors with mandatory penal consequences, the Guidelines encounter the due process mandate of In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), that elements of a crime must be proved beyond a *665reasonable doubt. In McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), the Court applied Win-ship in the context of sentencing proceedings. In determining the constitutionally permissible standard of proof for sentencing factors that “provide sentencing courts with additional guidance” without altering the statutory maximum for the offense of conviction, id. at 87-88, 92, 106 S.Ct. at 2416-17, 2419, the Court distinguished between traditional sentencing factors that may be proved by a mere preponderance and sentencing factors that must be proved beyond a reasonable doubt because they constitute elements of a crime. Id. at 89, 106 S.Ct. at 2417. Although the Court recognized that legislatures might attempt to circumvent the Winship requirement by reclassifying elements of a crime as sentencing factors, it upheld the Pennsylvania legislature’s classification of “visible firearm possession” as a sentencing factor because visible firearm possession had not “historically been treated ‘in the Anglo-American tradition’ as requiring proof beyond a reasonable doubt.” See id. at 90, 106 S.Ct. at 2418 (quoting Patterson v. New York, 432 U.S. 197, 226, 97 S.Ct. 2319, 2335, 53 L.Ed.2d 281 (1977) (Powell, J., dissenting)).
The Guidelines provide us with a sentencing scheme that seems to be unprecedented in that it not only treats elements of a crime as sentencing factors, but also attaches mandatory penal consequences to proof of those facts. Congress has explicitly made each act of selling cocaine a separate crime. See 21 U.S.C. § 841(a). Congress has also required through the Guidelines that a convicted defendant receive a longer sentence if it is proved at sentencing that he has engaged in additional drug sales. The majority interprets the statute as permitting these additional sales to be proved at sentencing by a mere preponderance and finds that interpretation to be constitutional without addressing the constitutional line drawn in McMillan between elements of a crime and traditional sentencing factors. By contrast, I find no reason to resolve this serious constitutional question when construing the statute as adopting a higher standard would not be “plainly contrary to the intent of Congress.” See, e.g., Burns v. United States, — U.S. -, 111 S.Ct. 2182, 2187, 115 L.Ed.2d 123 (1991).
The majority’s interpretation of the Guidelines raises a second due process question. The Guidelines represent an historic break from the practice of endowing trial judges with the virtually unfettered discretion to sentence up to the statutory maximum. Under the Guidelines, judicial discretion is all but eliminated. The Guidelines require a sentence determined by the offense level corresponding to the offense of conviction. The sentence changes if, and only if, the sentencing judge makes specified findings of fact. Judicial fact-finding is substituted for judicial discretion as the currency of the new sentencing regime.
In so structuring judicial decisionmaking, the Guidelines create a liberty interest in a sentence within the relevant Guidelines range. Because the factfinding process profoundly impacts this newly created liberty interest, the majority’s interpretation of the Guidelines as permitting all sentencing facts to be proved by a mere preponderance raises a serious due process question under Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).
Principles of judicial restraint dictate that we avoid resolving constitutional questions if a permissible alternative interpretation of the statute that is not “plainly contrary to the intent of Congress” is available. See, e.g., Burns, 111 S.Ct. at 2187. It is not plainly contrary to the intent of Congress to construe the Sentencing Reform Act as requiring that elements of a separate crime, when used as sentencing factors, be proved by a standard of proof higher than a preponderance of the evidence. Not only would such an interpretation avoid major constitutional problems, it would also better serve the Act’s basic goals of reducing sentence disparity and promoting fairness in sentencing.
I
Under traditional discretionary sentencing regimes, there is no rule, general or *666specific, for the standard of proof governing factfinding. In these sentencing regimes, all sentencing decisions, including the weight to be given conduct that would normally constitute an element of a separate crime, are entrusted to the virtually unreviewable discretion of the sentencing judge, so long as the sentence does not exceed the statutory maximum for the offense of conviction.1 Due process does not impose a minimum standard of proof under such regimes because factfinding has no mandatory penal consequences.
In McMillan, the Court dealt, for the first time, with a due process challenge to a sentencing regime in which sentencing factfinding had mandatory penal consequences within the statutory range authorized by the offense of conviction.2 The Pennsylvania statute at issue in McMillan provided for a mandatory minimum sentence of five years for a convicted defendant who was found, by a preponderance of the evidence, to have visibly possessed a firearm during the commission of particular felonies. McMillan, 477 U.S. at 81, 106 S.Ct. at 2413. The Court recognized that the minimum sentence provision encountered the due process mandate of Winship, 397 U.S. at 364, 90 S.Ct. at 1072, which “explicitly” held that due process requires that each element of a crime be proved beyond a reasonable doubt. McMillan, 477 U.S. at 84-85, 106 S.Ct. at 2415. Accordingly, the Court in McMillan faced up to the question whether the Winship rule applied to a sentencing factor that had mandatory penal consequences.
The Court upheld the Pennsylvania statute against a challenge that due process required the gun possession to be proved by a standard higher than preponderance of the evidence. Id. at 91, 106 S.Ct. at 2418. In so doing, the Court drew a constitutional line between facts that may be proved by a mere preponderance at sentencing (sentencing factors) and facts that must be proved beyond reasonable doubt at trial (elements of a crime). In McMillan, the Court announced that it would generally defer to a legislature’s classification of a particular fact as “an element of a crime” or “a sentencing factor.” Id. at 86, 106 S.Ct. at 2416. However, relying on Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977), the Court added that “there are constitutional limits to the State’s powers in this regard; in certain limited circumstances Winship’s reasonable-doubt requirement applies to facts not formally identified as elements of the offense charged.” McMillan, 477 U.S. at 86, 106 S.Ct. at 2416 (emphasis added).
In upholding the Pennsylvania statute, the Court relied on the fact that sentencing factfinding under the Pennsylvania statute “neither alters the statutory maximum for the crime committed nor creates a separate offense calling for a separate penalty.” McMillan, 477 U.S. at 87-88, 106 S.Ct. at 2417. Accord Schad v. Arizona, — U.S. -, 111 S.Ct. 2491, 2504 n. 9, 115 L.Ed.2d 555 (1991) (referring to McMillan as “relying on the fact that under Pennsylvania law possession of a weapon ‘neither alters the maximum penalty for the crime committed nor creates a separate offense call*667ing for a separate penalty’ ”) (quoting McMillan, 477 U.S. at 87-88, 106 S.Ct. at 2417). The Court noted that the Pennsylvania statute merely “rais[es] the minimum sentence that may be imposed by the trial court.” McMillan, 477 U.S. at 89, 106 S.Ct. at 2418.
The Court acknowledged, however, that, even if a sentencing factor neither alters the statutory maximum for the offense of conviction nor creates a separate offense calling for a separate penalty, the preponderance standard might not pass constitutional muster if the legislature has attempted to evade the commands of Win-ship by reclassifying an element of a crime as a sentencing factor. Id. at 89, 106 S.Ct. at 2417. In so doing, Court drew a constitutional line between traditional sentencing factors that may be proved by a mere preponderance and sentencing factors that must be proved by a higher standard because they have historically been considered elements of a crime. Applying the constitutional line to the facts of the case, the Court upheld the Pennsylvania statute, reasoning that the use of the preponderance standard was permissible because firearm possession was a traditional sentencing factor and had not “historically been treated ‘in the Anglo-American legal tradition’ as requiring proof beyond a reasonable doubt.” McMillan, 477 U.S. at 90, 106 S.Ct. at 2418 (quoting Patterson, 432 U.S. at 226, 97 S.Ct. at 2335 (Powell, J., dissenting)). The Court in McMillan noted that this distinction between elements of a crime and traditional sentencing factors is built in part around the legislative classification of the facts to be proved and not simply around penal consequences of such proof. Obviously, every element of a crime must be proved beyond a reasonable doubt regardless of how minimal the potential sentence might be. Just as a traditional sentencing factor does not become an element of a crime simply because it affects the sentence significantly, an element of a crime does not become a traditional sentencing factor simply because it affects the sentence slightly.
To apply this McMillan distinction between an element of a crime and a traditional sentencing factor to the facts of this case, we must spell out the sentencing process under the Guidelines. Under the Guidelines, the defendant’s conviction at trial determines his “base offense level” which mandates a particular sentence. However, the Guidelines also require a sentencing judge to go through a lengthy fact-finding process. If a judge finds that particular facts exist, she is obliged to enhance the sentence automatically. She can subsequently decrease that sentence only if she finds further particular facts.
Appellant was convicted of engaging in two cocaine sales. In determining his sentence, the sentencing judge made the following findings of fact: (1) the two sales for which appellant was convicted involved 37.5 grams of cocaine; (2) appellant was responsible for two additional separate sales; (3) the quantity involved in those sales was 65.83 grams. Under section lB1.3(a)(2) of the Guidelines, the sentencing judge was required to aggregate all the cocaine and to sentence appellant on the basis of 103.33 grams. Since the Guidelines determine a drug-related sentence on the basis of the quantity of drugs sold, these sentencing findings of fact enhanced appellant’s sentence automatically. McMillan requires that we evaluate the legislative classification of each mandatory sentence enhancing factor individually.
With respect to the first fact, Congress has classified the quantity of drugs involved in the particular sales for which defendant has been convicted as a sentencing factor, and not as an element of a crime. See 21 U.S.C. § 841(b) (quantity of controlled substance figures under subsection entitled “penalties”). I believe that, if Congress had adopted the preponderance standard for the proof of such a fact, Congress’ classification might be permissible under the McMillan distinction because the quantity of drugs involved in a particular sale for which defendant has been convicted would seem to be a traditional sentencing factor. As the Seventh Circuit stated in interpreting section 841(b), “Section 841(b) is a penalty enhancement provision.... Section 841(b) has nothing to do *668with the substantive elements of the underlying offense [bjecause the quantity of the controlled substance is a sentencing issue unrelated to a defendant’s underlying guilt.” United States v. Acevedo, 891 F.2d 607, 611 (7th Cir.1989); see also United States v. Wood, 834 F.2d 1382, 1388 (8th Cir.1987) (“Both the plain language and the structure of [21 U.S.C. § 841(b)] indicate that it is a sentencing provision.”). Under our criminal law, “[t]he quantity of the controlled substance is not an essential element of the crimes proscribed under sections 841(a)(1) and 846; rather, it is a sentencing issue to be raised after proof of a defendant’s underlying guilt.” United States v. McNeese, 901 F.2d 585, 600-01 (7th Cir.1990); see also Acevedo, 891 F.2d at 611; United States v. Brown, 887 F.2d 537, 540 (5th Cir.1989). Thus, due process might be satisfied if the preponderance standard were applied to determine the quantity of drugs involved in the two sales for which appellant was convicted.
The constitutional calculus is different for the second sentencing fact — that appellant was responsible for the additional separate sales. Unlike the Pennsylvania legislature in McMillan, which had classified “visible gun possession” as a sentencing factor and had not treated it as a separate substantive offense, Congress has declared each and every drug sale to be a separate substantive criminal offense. See 21 U.S.C. § 841(a)(1). The act of selling illegal drugs is a crime while the quantity of drugs sold determines the penalty. Compare 21 U.S.C. § 841(a) (declaring the manufacturing, distributing, dispensing, etc. of a controlled substance to be “unlawful acts”) with 21 U.S.C. § 841(b) (declaring that the quantity of controlled substances involved in the unlawful acts determines the “penalt[y]”). In interpreting 21 U.S.C. § 841(a), the Fifth Circuit declared that “[t]he statutory language clearly defines the unit of prosecution to be the act of delivering controlled substances into the hands of another_ There is no ambiguity.” United States v. McDonald, 692 F.2d 376, 379 (5th Cir.1982) (declaring two acts of distribution to be two distinct criminal acts) cert. denied, 460 U.S. 1073, 103 S.Ct. 1531, 75 L.Ed.2d 952 (1983); see also United States v. Thompson, 624 F.2d 740, 742 (5th Cir.1980).
Further confirmation of the distinct criminal status of individual drug sales is provided by the fact that the prosecutor was free to charge appellant with all four counts of the indictment — where each count referred to a separate sale. See United States v. Smith, 757 F.2d 1161, 1165 (11th Cir.1985) (“The language of [21 U.S.C. § 841(a)(1)] plainly indicates that the government may prosecute a person for each separate act of distribution even if one distribution facilitates the next one.”); United States v. Weatherd, 699 F.2d 959, 962 (8th Cir.1983); United States v. Noel, 490 F.2d 89, 90 (6th Cir.1974). Since Congress has declared these drug sales to be separate crimes, McMillan strongly suggests that a Congressional reclassification of this element of a crime as a sentencing factor through the adoption of the Sentencing Guidelines is an impermissible attempt to evade the Winship due process mandate. See McMillan, 477 U.S. at 89, 106 S.Ct. at 2417. Thus, in this case, the Constitution would probably not permit the sentencing judge to find by a mere preponderance that appellant was responsible for these two additional sales.
The present case is easy to resolve, in part because Congress has declared drug sales to be separate and distinct crimes. Even if Congress had classified “a separate drug sale” as a sentencing factor that may be proved by a preponderance, however, there would have been little doubt that Congress’ classification fell on the impermissible side of the constitutional line drawn in McMillan. See 477 U.S. at 91, 106 S.Ct. at 2418. Unlike the gun possession factor in McMillan, an additional drug sale plainly constitutes a separate crime because it has “historically been treated ‘in the Anglo-American legal tradition’ as requiring proof beyond a reasonable doubt.” Id. at 90, 106 S.Ct. at 2418 (quoting Patterson, 432 U.S. at 226, 97 S.Ct. at 2335 (Powell, J., dissenting)).
The constitutional calculus for the third sentencing fact — the quantity involved in *669the additional sales — is determined by the constitutional calculus for the sales themselves. Before a sentencing judge can take the amount of drugs involved in those uncharged sales into account, she must make a finding of fact that these additional sales actually took place. Since this fact unequivocally constitutes an element of a crime, a serious constitutional question is raised if it may be proved by a mere preponderance. Of course, once uncharged sales are proved by a constitutional standard, the quantity involved might be permissibly proved by a mere preponderance.
The majority attributes to a silent Congress the intent to take the internally contradictory stand that the finding of a drug sale is both an element of a crime that must be proved beyond a reasonable doubt and a sentencing fact that may be proved by mere preponderance. Unlike the Pennsylvania legislature in McMillan, neither Congress nor the Sentencing Commission has taken a position on the standard of proof governing the sentencing factfinding process. Why then does the majority impute such an irrational and arguably unconstitutional intent to Congress when we have a perfectly sensible way of reconciling Congress’ commands? When we consider the constitutional line drawn in McMillan, we are left with only one rational reading of Congress’ intention: Congress intended to allow the government to prove certain elements of additional crimes at sentencing, but it did not intend that the government carry a lower burden of proof at sentencing than at trial. The majority’s failure to adopt this rational and permissible reading is inexplicable in light of the serious constitutional question that the alternative reading raises.
II
The majority’s interpretation of the Guidelines as adopting the preponderance standard raises a second serious due process question. Not only do the Guidelines require, for the first time, that a sentencing judge enhance a sentence based on findings of criminal conduct at sentencing, but they constitute a radical departure from traditional discretionary sentencing practices in an additional sense. See Bums, 111 S.Ct. at 2184 (“The Sentencing Reform Act of 1984 revolutionized the manner in which district courts sentence persons convicted of federal crimes.”). The Guidelines have replaced unfettered judicial discretion with an elaborate factfinding process that structures judicial decision-making. See Senate Committee Report on the Sentencing Reform Act, S.Rep. No. 225, 98th Cong., 1st Sess. 65 (1983), U.S.Code Cong. & Admin.News 1984, pp. 3182, 3248 (discussing how the Guidelines “structure judicial sentencing discretion”); see also United States v. Lira-Barraza, 941 F.2d 745, 748 (9th Cir.1991) (stating that the Guidelines imposed “a single statutory sentencing structure guiding the discretion of the court in all cases”); United States v. Allen, 873 F.2d 963, 966 (6th Cir.1989) (“[T]he Act and Guidelines substantially circumscribe the discretion which sentencing courts formerly exercised.”) (citations omitted). Indeed, to a large extent, the Guidelines have eliminated judicial discretion.
Under our due process jurisprudence, this revolutionary change in judicial discretion has created, for the first time, a liberty interest in a sentence below the statutory maximum. Indeed, in replacing a judgment-driven system with a data-driven system, the Sentencing Reform Act has created a liberty interest in a sentence within the relevant Guidelines range, initially determined by the “base offense level” corresponding to the “offense of conviction.” Because an important liberty interest is at stake, we are compelled to carry out independently the relevant due process inquiry mandated by Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). Under our current constitutional jurisprudence, this inquiry leads to the inescapable conclusion that the indiscriminate use of the preponderance standard within the context of Guidelines factfinding raises serious due process questions. A higher standard not only avoids the constitutional question but better serves the goals underlying the statute.
*670A
Central to any liberty interest analysis is the extent to which governmental discretion to take away liberty has been cabined through legislation. See, e.g., Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 465, 101 S.Ct. 2460, 2465, 69 L.Ed.2d 158 (1981) (“The ground for a constitutional claim, if any, must be found in statutes or other rules defining the obligations of the [relevant] authority_”); Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 2077, 48 L.Ed.2d 684 (1976). In the parole context, for instance, a convicted defendant may have a liberty interest in an early release date if the discretion of the parole authority is restricted by statute. See Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 12, 99 S.Ct. 2100, 2106, 60 L.Ed.2d 668 (1979). In Board of Pardons v. Allen, 482 U.S. 369, 381, 107 S.Ct. 2415, 2422, 96 L.Ed.2d 303 (1987), the Court applied Greenholtz in holding that a Montana parole release statute created a liberty interest. The Montana Parole Board had argued that because the criteria for denying release were very broad, e.g., “detriment to the prisoner or to the community,” the Board retained so much discretion that no liberty interest was created despite statutory language that “the board shall release on parole ... any person_” 482 U.S. at 376, 107 S.Ct. at 2420. The Court, rejecting this argument, held that mandatory language created a liberty interest even when the regulatory scheme “cannot be applied mechanically,” as long as it requires release when designated findings are made. Id. at 375, 377-78, 107 S.Ct. at 2419, 2420.
In a traditional discretionary sentencing regime, a convicted defendant has no liberty interest in a sentence below the statutory maximum because the trial judge’s discretion to sentence the defendant up to the statutory maximum is “unfettered.” Cf. Dumschat, 452 U.S. at 465, 101 S.Ct. at 2464. McMillan, once again, provides meaningful guidance on this issue. In holding that the Pennsylvania sentencing scheme did not create a protected liberty interest in a sentencing range below the statutory maximum, the Court reasoned that the sentencing finding of visible gun possession did not restrict the defendant’s liberty more than the defendant’s conviction alone did. See McMillan, 477 U.S. at 88, 106 S.Ct. at 2417 (“[The Pennsylvania statute] neither alters the maximum penalty for the crime committed nor creates a separate offense calling for a separate penalty.”). Under the Pennsylvania statute, the sentencing judge retained discretion to sentence a convicted defendant up to the statutory maximum based solely on the conviction itself. Thus, under that statute, a defendant had no legitimate basis for expecting a sentence less than the statutory minimum whether or not he was found to have visibly possessed a gun. Nor did he have a legitimate expectation of receiving a sentence below the gun enhancement minimum of five years because the gun enhancement provision did not affect the sentencing judge’s discretion to impose a sentence up to the statutory maximum of twenty years.
In McMillan, all that defendant lost was a hope of a sentence of less than five years. A “unilateral hope” based on mere chance is not enough to create a liberty interest. See Dumschat, 452 U.S. at 465, 101 S.Ct. at 2464 (rejecting the idea that “a unilateral hope” based on statistical probability amounts to a legitimate expectation). Absent a statute-based expectation in a lesser sentence, a convicted defendant had no liberty interest at stake in the sentencing factfinding process. In other words, a finding of gun possession, by whatever standard of proof, could not change the “due process calculus.” McMillan, 477 U.S. at 92, 106 S.Ct. at 2419.
The Guidelines change the due process calculus dramatically because they take an unprecedented step in our criminal law by creating, for the first time, an expectation of a sentence within a certain range that will usually be below the statutory maximum. This expectation creates a liberty interest protected by due process because the sentencing judge no longer has the discretion to impose a higher sentence up to the statutory maximum “for whatever reason or for no reason at all.” Meachum *671v. Fano, 427 U.S. 215, 228, 96 S.Ct. 2532, 2540, 49 L.Ed.2d 451 (1976); see also Lira-Barraza, 941 F.2d at 748 (“The problem was disparity. Its cause was unlimited judicial discretion. The remedy was a single statutory sentencing structure guiding the discretion of the court in all cases to the end that similar sentences would be imposed on similar offenders for similar offenses.”). On the contrary, the judge can enhance the sentence only if she makes certain findings of fact specified in the Guidelines.
The Guidelines operate literally like a flow chart: The defendant’s conviction at trial determines his “base offense level.” See U.S.S.G. § lB1.2(a). The Guidelines then require that the sentencing judge go through a long checklist of specified factors. See generally U.S.S.G. §§ lB1.2(b)-(c) and lBl.l(c)-(g). Once the judge makes prescribed findings of fact with respect to any one of the factors, she is required to increase or decrease the offense level automatically and by a specified amount. The offense level resulting from these compelled enhancements determines the “guideline range.” U.S.S.G. § 1B1.1. Judicial discretion kicks in only at this point, and even so, in a structured manner: the judge can exercise an option to “depart” from the Guidelines range only if she finds certain further aggravating or mitigating circumstances that bear some resemblance to the sentencing structure established by the Act. See 18 U.S.C. § 3553(b); U.S.S.G. § 5K1.1-5K2.15; Lira-Barraza, 941 F.2d at 746, 748-51. Since, under Guidelines sentencing, judicial discretion has all but disappeared, the sentence authorized by statute is no longer any sentence up to the statutory maximum, but the sentence that is within the range determined by the Guidelines.
Under the Guidelines, judicial discretion kicks in only after the Guidelines range is set and then only in a limited way. At that point, the judge has discretion to depart from that range only if certain conditions are satisfied. Recently, the Supreme Court recognized that Guidelines sentencing may create a liberty interest even within the context of such discretionary departure decisions. Burns, 111 S.Ct. at 2187. Burns involved the question whether Federal Rule of Criminal Procedure 32 requires notice that the sentencing judge is considering departing upward from the “applicable Guidelines sentencing range.” Id. at 2184. In interpreting Rule 32 to require such notice, the Court stated, “In this case, were we to read Rule 32 to dispense with notice, we would then have to confront the serious question whether notice in this setting is mandated by the Due Process Clause.” Id. Implicit in that concern is the Court’s recognition that Guidelines sentencing, even at its most discretionary phase, may create a liberty interest.
In dissent, Justice Souter reached the liberty interest question because he disagreed with the Court’s interpretation of Rule 32. In his analysis, Justice Souter found unequivocally that the Sentencing Reform Act creates “an expectation subject to due process protection that [a defendant] will receive a sentence within the presumptively applicable range in the absence of grounds ... justifying departure.” Burns, 111 S.Ct. at 2192 (Souter, J., dissenting); see also United States v. Lawrence, 918 F.2d 68, 73-74 (8th Cir.1990) (“[The Guidelines] give convicted defendants a protected liberty interest to a sentence within the Guidelines range appropriate for their conduct and circumstances.”) (Bright, J., dissenting), cert. denied, — U.S. -, 111 S.Ct. 1399, 113 L.Ed.2d 455 (1991). In his analysis, Justice Souter relied upon Green-holtz, supra, and its progeny, which recognized that mandatory parole statutes, by giving convicted defendants an “expectancy of release,” create a liberty interest subject to “some measure of constitutional protection.” Greenholtz, 442 U.S. at 12, 99 S.Ct. at 2106. Justice Souter reasoned that the Sentencing Reform Act similarly created a liberty interest by using mandatory language that a sentencing judge “shall impose a sentence of the kind, and within the range [set forth in the Guidelines,] unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission.” *672Burns, 111 S.Ct. at 2192 (Souter, J., dissenting) (quoting 18 U.S.C. § 3553(b)).3
The reasoning of eight Justices in Burns4 which involved a discretionary departure from the Guidelines range, applies with even greater force to the factfinding process that leads to the setting of that range. Judicial discretion to depart from the Guidelines range is relatively unfettered. In setting the range, by contrast, judges have no discretion. Because the constitutional protection accorded to an expectation turns on the degree to which the decisionmaker’s discretion is cabined, a defendant’s liberty interest in a sentencing range determined by the base offense level is necessarily greater than his liberty interest in a sentence within the applicable Guidelines range. This is so, even though the statistical probability of receiving a sentence determined purely by the base offense level might be less than the probability of receiving a sentence within the Guidelines range. See Dumschat, 452 U.S. at 465, 101 S.Ct. at 2465 (“[Statistical probabilities standing alone generate no constitutional protections.... The ground for a constitutional claim ... must be found in statutes or other rules defining the obligations of the [decisionmaker].”).
In sum, the Guidelines create a liberty interest in a sentence determined by the base offense level corresponding to the offense of conviction unless required findings of fact are made. Thus, in the present case, appellant has a liberty interest in a sentence initially based upon his present conviction — offense level 14.
B
Because the Guidelines create a liberty interest in a sentencing range determined by the base offense level corresponding to the offense of conviction, we must determine what process is due before a defendant may be deprived of this interest. More specifically, the question is whether the preponderance standard satisfies the Due Process Clause by providing adequate protection against a deprivation of liberty through inaccurate factfinding.
Neither Congress nor the Sentencing Commission has taken a position on the standard of proof governing the factfind-ing process. The texts of the Sentencing Reform Act and of the Guidelines are silent on the standard of proof issue. Why Congress failed to address such an important issue is unclear, but one plausible explanation is that standard of proof questions have “traditionally been left to the judiciary to resolve.” Woodby v. INS, 385 U.S. 276, 284, 87 S.Ct. 483, 487, 17 L.Ed.2d 362 (1966).
The legislative history is instructive, however, because it demonstrates that Congress intended the Guidelines to change sentencing practices radically. See Burns, 111 S.Ct. at 2184. The law creating the Sentencing Commission makes clear that the changes are fundamental: The purpose of the Commission is to “establish sentencing policies and practices for the Federal criminal justice system” that comport with Congressional goals. 28 U.S.C. § 991(b)(1). The Commission is not meant to tinker; it is to establish sentencing policies and practices.
The Commission has stressed that fact-finding under the Guidelines will require more formality. After noting that “[i]n pre-guidelines practice, factors relevant to sentencing were often determined in an informal fashion,” U.S.S.G. § 6A1.3, the Commentary to the Guidelines states, “This situation will no longer exist under sentencing guidelines.” Id. The prime reason is *673that “[t]he court’s resolution of disputed sentencing factors will usually have a measurable effect on the applicable punishment,” and, as a result, “[m]ore formality is therefore unavoidable if the sentencing process is to be accurate and fair.” Id. (emphasis added). Indeed, “disputes about sentencing factors must be resolved with care.” Id.
The Supplementary Report on the Initial Sentencing Guidelines and Policy Statements (1987) [hereinafter Supplementary Report ] also points out that “[ajccurate fact-finding is essential to ensure that a proper sentence is imposed. The guidelines will not achieve their intended effect if sentencing procedures are unreliable.” Id. at 45. “Sentencing ... can require attention to many more discrete factual issues” than do jury determinations of guilt, and these factual issues “receive increased emphasis in a guideline system.” Id. And further:
Existing law addressing dispute resolution in the sentencing context remains to be developed fully. Current sentencing practice often is informal. Particular facts seldom have a formal sentencing consequence under current law. Under the guidelines, however, the resolution of disputed sentencing factors often will have a definite and often quite substantial impact on the sentence. As a consequence, greater formality than currently exists can be expected in many cases.
Id. at 47.
Although the Commission has focused our attention on the important new role played by factfinding in the sentencing process, it has left the standard of proof issue to the courts to resolve:
With respect to sentencing issues that are genuinely disputed, the Commission chose simply to emphasize the importance of accuracy and fairness. Especially in light of questions that have been raised regarding the Commission’s power to prescribe enforceable rules for dispute resolution, most of the procedural details are left for resolution by the sentencing court in light of the nature and importance of the particular issue and the context in which it arises.
Among the legal issues that may have to be resolved are: ... What is the weight of the burden of persuasion (i.e., is it sufficient to prove the asserted factor by a preponderance of the evidence or is a higher degree of certainty required)?
Id. at 46, 47 n. 79 (emphasis added).
In the absence of clear guidance from either the Congress or the Sentencing Commission, we must determine the appropriate standard of proof with a paramount principle of judicial restraint in mind: we should favor a standard of proof that does not raise serious constitutional questions if one that is not plainly contrary to the intent of Congress is available. See, e.g., Burns, 111 S.Ct. at 2187 (quoting Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council, 485 U.S. 568, 575, 108 S.Ct. 1392, 1397, 99 L.Ed.2d 645 (1988) (“[WJhere an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress.”)).
C
It is settled law that “[t]he safeguards of due process are not rendered unavailable simply because a determination may already have been reached that would stigmatize the defendant and that might lead to a significant impairment of personal liberty.” Mullaney v. Wilbur, 421 U.S. 684, 698, 95 S.Ct. 1881, 1889, 44 L.Ed.2d 508 (1975). Having found that the Guidelines create a liberty interest in the “base offense level” corresponding to the “offense of conviction” and that Congress has specified no standard of proof, I turn to Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), to analyze whether the preponderance standard satisfies due process within this context.5 Mathews *674teaches that when a liberty interest is implicated, we must balance the individual’s liberty interest against the interests of the government. In the Guidelines context, the individual's interest in avoiding excessive punishment must be balanced against the government’s interest in imposing an appropriate sentence. See Mullaney, 421 U.S. at 699, 95 S.Ct. at 1890 (mandating “an analysis that looks ... to the interests of both the State and the defendant as affected by the allocation of the burden of proof”); cf. Addington v. Texas, 441 U.S. 418, 425, 99 S.Ct. 1804, 1809, 60 L.Ed.2d 323 (1979) (“[W]e must assess both the extent of the individual’s interest in not being involuntarily confined indefinitely and the state’s interest in committing the emotionally disturbed under a particular standard of proof.”).
The importance of the liberty interest at stake need not be labored. As Justice Souter put it in Burns, “The defendant’s interest in receiving a sentence not unlawfully higher than the upper limit of the guideline range is ... clearly substantial.” 111 S.Ct. at 2193 (Souter, J., dissenting). See also Allen, 482 U.S. at 373 n. 3, 107 S.Ct. at 2418 n. 3 (“At stake in the parole-release decision is a return to freedom, albeit conditional freedom; liberty from bodily restraint is at the heart of the liberty protected by the Due Process Clause.”); Morrissey v. Brewer, 408 U.S. 471, 482, 92 S.Ct. 2593, 2601, 33 L.Ed.2d 484 (1972) (“[T]he liberty of a parolee, although indeterminate, includes many of the core values of unqualified liberty and its termination inflicts a ‘grievous loss’ on the parolee and often on others.”). Under the Guidelines, then, a defendant’s stake in accurate fact-finding at sentencing may be as great as his stake in accurate factfinding at trial.
Traditionally, a burden of proof greater than preponderance of the evidence has been required when “[t]he interests at stake in th[e] cases are deemed to be more substantial than mere loss of money.” Addington, 441 U.S. at 424, 99 S.Ct. at 1808. Surely a defendant faced with a sentence longer than the sentence mandated for crimes proved at trial has a liberty interest at stake at least as great as that of an alien facing deportation, Woodby v. INS, 385 U.S. 276, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966), a citizen facing denaturalization, Chaunt v. United States, 364 U.S. 350, 353, 81 S.Ct. 147, 149, 5 L.Ed.2d 120 (1960), a parent facing termination of parental rights, Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), a defendant in a civil action facing allegations of fraud, Addington, 441 U.S. at 424, 99 S.Ct. at 1808, or a mentally ill person facing civil commitment, id. at 427, 99 S.Ct. at 1810.
The government’s interest in the preponderance standard of proof, on the other hand, is more attenuated. It goes without saying that the government has a compelling interest in protecting the community from crime. But the government also has an interest in returning convicted defendants to their families and their jobs. In other words, the government has an interest in avoiding sentences that are excessive as well as too lenient. In the last analysis, the government's interest is in a just sentence. Indeed, the spirit that drives Guidelines sentencing is fairness — fairness that is achieved by reducing sentencing disparity. See U.S.S.G. Ch. 1, Pt. A, intro, comment.
It is not clear how the preponderance standard, in allocating the risk of error nearly equally between the individual and the government, serves the government’s interest in fairness and accuracy. Indeed, a higher standard better serves that interest because it assures “a higher degree of certainty” in the factfinding process that determines a defendant’s applicable Guidelines range. Supplementary Report, supra, at 47 n. 79.
*675When the preponderance standard is coupled with the imbalance in litigation resources between the government and the individual, the result is the creation of “a significant prospect” of error. See Santosky, 455 U.S. at 762-64, 102 S.Ct. at 1399-1400 (disparity in litigation resources renders preponderance standard constitutionally inadequate in proceedings terminating parental rights). The imbalance in resources at sentencing hearings is striking. First, the government’s ability to make its case vastly exceeds a defendant’s ability to rebut it. The financial resources of the prosecution and the ability of prosecutors to access police, informants, and experts usually are much greater than those of defendants’ counsel. Pope, How Unreliable Factfinding Can Undermine Sentencing Guidelines, 95 Yale L.J. 1258, 1268-70 (1986). Second, presentence reports often rely excessively on the prosecutor’s files for their information, id. at 1277, and hearsay evidence in presentence reports or from confidential informants is difficult and costly to rebut. See United States v. Fatico, 458 F.Supp. 388, 398-99 (E.D.N.Y.1978), aff'd, 603 F.2d 1053 (2d Cir.1979), cert. denied, 444 U.S. 1073, 100 S.Ct. 1018, 62 L.Ed.2d 755 (1980). The absence of equal litigation resources thus makes the preponderance of evidence standard generate even more errors — errors that fall primarily on the side of deprivations of liberty for individuals.
In other circumstances, the Supreme Court has held that a preponderance of evidence standard violated due process. Although these cases are not controlling authority on the due process question raised by proving sentence enhancing factors by a preponderance of evidence, they do illustrate the seriousness of that question.
In Addington v. Texas, the Court held that the state’s legitimate parens patriae interest in providing care to citizens unable because of emotional disorders to take care of themselves did not outweigh the individual’s interest in avoiding an erroneous involuntary commitment to a mental institution. 441 U.S. at 426-27, 99 S.Ct. at 1809-10. The Court pointed out that “[ijncreas-ing the burden of proof is one way to impress the factfinder with the importance of the decision and thereby perhaps to reduce the changes that inappropriate commitments will be ordered.” Id. at 427, 99 S.Ct. at 1810. The Court concluded that “[t]he individual should not be asked to share equally with society the risk of error when the possible injury to the individual is significantly greater than any possible harm to the state.” Id.
Likewise, in Santosky v. Kramer, the Supreme Court held a parent’s interest in avoiding erroneous termination of parental rights outweighed the state’s interest in promoting the welfare of the child. The Court held that “[f]or the child, the likely consequence of an erroneous failure to terminate is preservation of an uneasy status quo,” while for the parents, the consequence of an erroneous termination is “the unnecessary destruction of their natural family.” 455 U.S. at 765-66, 102 S.Ct. at 1401. In those circumstances, “[a] standard that allocates the risk of error nearly equally between those two outcomes does not reflect properly their relative severity.” Id. at 766, 102 S.Ct. at 1401. See also Woodby, 385 U.S. at 286, 87 S.Ct. at 488 (in a statutory interpretation case, federal government’s interest in proving the de-portability of resident aliens by a preponderance of the evidence held to be outweighed by the hardships of an erroneous finding of deportability).
In balancing the interests of the government against the interests of the individual, we are required by Mathews to consider the extent to which a higher standard of proof would burden the sentencing process. In attempting to justify the preponderance standard, some of our sister circuits have fretted about turning the sentencing hearing into a “second trial.” See, e.g., United States v. Guerra, 888 F.2d 247, 251 (2d Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 1833, 108 L.Ed.2d 961 (1990). This concern is, however, more imaginary than real. The reality is that Congress, in discarding a system of discretionary, individualized sentencing in favor of a system that works by feeding facts into a grid, has *676made it inevitable that sentencing hearings would be endowed with the attributes of a trial regardless of which standard of proof applies. In Guidelines sentencing hearings, prosecutors and defense counsel are already pitted against each other in a genuinely adversarial factfinding process. The judge, instead of crafting an individualized sentence based on information from a variety of sources, now spends her time adjudicating issues of fact. See U.S.S.G. § 6A1.3; see also Burns, 111 S.Ct. at 2185 (“As amended by the Sentencing Reform Act, Federal Rule of Criminal Procedure 32 provides for focused, adversarial development of the factual and legal issues relevant to determining the appropriate Guidelines sentence.”). When Congress passed the Sentencing Reform Act, it was fully aware that the new system it was creating would require formal factfinding. For the first time in the history of the federal courts, Congress gave defendants the right to appeal findings of fact that bear on their sentences. 18 U.S.C. § 3742(a)(2). The Commission also acknowledged that “[accurate factfinding is essential to ensure that a proper sentence is imposed. The Guidelines will not achieve their intended effect if sentencing procedures are unreliable.” Supplementary Report, supra, at 45. According to the Commission, “More formality is ... unavoidable if the sentencing process is to be accurate and fair.” U.S.S.G. § 6A1.3, comment. Since Congress has made the policy choice in favor of a sentencing regime that is necessarily adversarial, it is not for the courts to sacrifice constitutional values for the sake of imagined cost-savings of the preponderance standard of proof. See Santosky, 455 U.S. at 767, 102 S.Ct. at 1402 (“[A] stricter standard of proof would reduce factual error without imposing substantial fiscal burdens upon the State”).
In sum, the preponderance of evidence standard, when applied, in Guidelines sentencing, to factfinding that may enhance a sentence above the base offense level corresponding to the offense of conviction, raises a substantial due process question under the Mathews balancing test. Given that the government’s interest in the mere preponderance standard of proof is so tenuous and the defendant’s liberty interest is so real, we run a serious risk of violating due process if we require the individual “to share equally with society the risk of error.” Addington, 441 U.S. at 427, 99 S.Ct. at 1810. We should, therefore, avoid the constitutional question and reject the majority’s broad and indiscriminate rule that all factfinding at sentencing is governed by the preponderance standard. See, e.g., Bums, 111 S.Ct. at 2187.
D
A standard of proof higher than mere preponderance not only avoids the constitutional question, but is also not “plainly contrary to the intent of Congress.” Edward J. DeBartolo Corp., 485 U.S. at 575, 108 S.Ct. at 1397. Indeed, a higher standard serves better the basic purpose of the Guidelines: fairness by reducing disparity in sentencing. See, e.g., Lira-Barraza, 941 F.2d at 748; United States v. Williams, 891 F.2d 962, 964 (1st Cir.1989) (“[T]o implement the guidelines properly, courts must bear [the statutory] goals in mind. Among other things, courts must remember the importance which Congress, and the Commission, attached to ensuring that like situations are treated alike.”).6
A major, if not the major, goal of the Guidelines is the reduction of disparity in sentencing, disparity that is inherent in traditional discretionary sentencing systems. See 28 U.S.C. § 991(b)(1)(B) (“The purposes of the United States Sentencing Commission are to— ... provide certainty and fairness in meeting the purposes of sentencing, avoiding unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar criminal conduct.”); U.S.S.G. Ch. 1, Pt. A, intro, comment. In the context of *677sentencing hearings under the Guidelines, the preponderance standard fails to serve the Guidelines’ purpose of reducing sentencing disparity because it creates a new source of sentencing disparity — inaccurate factfinding.
A preponderance burden of proof, which allocates the risk of error nearly evenly, see Addington, 441 U.S. at 423, 99 S.Ct. at 1807, allows a fact to be considered true if the factfinder is convinced that the fact is more probably true than not, or to put it differently, if the factfinder decides there is a 50%-plus chance that it is true. The standard thus creates a much greater risk of error, far more error than a standard that would assure a “higher degree of certainty” in sentencing factfinding. Supplementary Report, supra, at 47 n. 79. The greater risk of error created by a preponderance standard disserves the Guidelines’ goal of sentencing uniformity. No matter how accurate and statistically significant the Guidelines distinctions and sentencing ranges may be, they will not serve Congress’ purpose unless defendants are assigned to the proper Guidelines range by accurate factfinding. As one commentator has said, “[I]n the war against [sentencing] disparity, the tacticians of the guidelines movement have paid insufficient attention to the procedures that develop the facts to which guidelines are applied_ Ironically, sentencing guidelines may entrench a different kind of disparity — factual disparity.” Pope, supra, at 1260.
Judge Bright’s dissent in Lawrence, 918 F.2d at 72-74 (Bright, J., dissenting), illustrates the cursory factfinding that the preponderance standard allows.7 He based his dissent on the ground that the sentencing factfinding was “plainly erroneous and constitutionally intolerable.” Id. at 72. The Presentence Report description of the offense conduct “consisted of a random listing of drug sales in no apparent chronological or otherwise discernable order ... [and the Presentence Report] frequently made no attempt to determine when or to whom the drugs were distributed ... or whether the conspiracy provided the drugs or aided their distribution_ As a result, the Pre-sentence Report may have double-counted drug quantities or included drug quantities that came from conspiracies not charged by the indictment.” Id. at 73. Judge Bright noted:
Lawrence’s plight is by no means unusual in these days of ‘sentencing by the numbers.’ To the contrary, the Sentencing Guidelines, despite their aura of objectivity, produce results that vary with the attitudes and judgments of human beings who interpret (and often misinterpret) them. Here, the district court accorded great weight to the numerous judgment calls in the probation officer’s report. I see these administrative decisions as error.
Id. at 74.
Because the Guidelines are designed to reduce sentencing disparity, we should not attribute to Congress or the Commission the intent to employ a standard of proof that introduces a significant risk of unfair “factual disparity” into the sentencing process. A higher standard, by reducing the risk of sentencing disparity caused by fact-finding errors, would better serve the goals underlying the statute.
Ill
In Burns the Court interpreted Rule 32 to require notice of a judge’s intent to depart because it was not plainly contrary to the intent of Congress, served the purposes of the Guidelines and avoided a constitutional question. See Burns, 111 S.Ct. at 2187. For the same three reasons we should interpret the Guidelines to require a higher standard of proof for Guidelines sentencing factfinding. Because using the preponderance standard both disserves the Guidelines’ purpose of reducing sentencing disparity and raises serious constitutional *678questions, we should not attribute to Congress the intent to use that standard in the absence of clear congressional direction that we should do so. See id. at 2187; NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 501, 99 S.Ct. 1313, 1319, 59 L.Ed.2d 533 (1979); United States v. Won Cho, 730 F.2d 1260, 1273 n. 18 (9th Cir.1984) (en banc).
In this case, however, we need not determine the standard of proof applicable to all sentence enhancing factors. We deal only with an enhancement based on sentencing findings that appellant engaged in two additional sales of cocaine which were not charged in the indictment. These additional sales constitute elements of a separate crime, not traditional sentencing factors. Regardless of which standard of proof we decide in future cases to apply to other sentencing factors, we should interpret the Guidelines as requiring a higher standard to prove elements of a separate crime as “relevant conduct” under section lB1.3(a)(2).
Interpreting the Guidelines as requiring a higher standard of proof is consistent with the McMillan distinction between “elements of a crime” and “traditional sentencing factors.” Consequently, even if in future cases we decide that the preponderance standard satisfies due process when applied to Guidelines factfinding for traditional sentencing factors, we would have a principled constitutional basis for distinguishing elements of additional crimes from these other sentencing factors. After all, our holding may be limited to elements of separate crimes because the due process inquiry is a particularized one. As Justice Souter stated in Bums, “Due Process, unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances, ... but is flexible, calling for such procedural protections as the particular situation demands.” Burns, 111 S.Ct. at 2192 (Souter, J., dissenting) (quoting Cafeteria Workers v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230 (1961) and Morrissey, 408 U.S. at 481, 92 S.Ct. at 2600). The Sentencing Commission, too, envisaged a process of particularized analyses when it left such important procedural issues for the courts to resolve “in light of the nature and importance of the particular issue and the context in which it arises.” Supplementary Report, supra, at 47 n. 79 (emphasis added).
In sum, regardless of the result we reach in future cases that deal with traditional sentencing factors under the Guidelines, there can be no doubt of the result in this case. Construing the Guidelines as allowing uncharged crimes to be proved by a mere preponderance raises a serious constitutional question and risks placing the Guidelines on the impermissible side of the constitutional line drawn in McMillan. An alternative construction of the statute as mandating a higher standard of proof would avoid this serious constitutional question.
In proposing that we reject the preponderance standard, I recognize I am asking our circuit to break ranks with virtually all of our sister circuits. With all due respect to them, I believe their opinions are generally infected with the same faulty analysis that infects the majority’s opinion in this case. Circuit has followed circuit without, in some cases, even a vestige of independent analysis. See, e.g., United States v. Silverman, 889 F.2d 1531, 1535 (6th Cir.1989); United States v. Fonner, 920 F.2d 1330, 1333 (7th Cir.1990); United States v. Burke, 888 F.2d 862, 869 (D.C.Cir.1989).
There are signs, however, that the dam is finally cracking, signs of an emerging awareness of the truly profound implications of the changes the Guidelines have wrought.8 I had hoped that our court in *679this ease would have chosen to lead rather than follow.
. As the Seventh Circuit has said, "The Court has tolerated the imposition of sentences on hunch, hearsay, anything other than ‘misinformation of constitutional magnitude.’ ” Jones v. Thieret, 846 F.2d 457, 461-62 (7th Cir.1988) (quoting United States v. Tucker, 404 U.S. 443, 447, 92 S.Ct. 589, 592, 30 L.Ed.2d 592 (1972)). Accord United States v. Fernandez-Vidana, 857 F.2d 673, 675 (9th Cir.1988); Jones v. United States, 783 F.2d 1477, 1481 (9th Cir.1986); United States v. Morgan, 595 F.2d 1134, 1138 (9th Cir.1979); United States v. Weston, 448 F.2d 626, 634 (9th Cir.1971), cert. denied, 404 U.S. 1061, 92 S.Ct. 748, 30 L.Ed.2d 749 (1972).
. The Due Process Clause requires that facts altering the statutory maximum for the offense of conviction be found beyond a reasonable doubt at trial. See Schad v. Arizona, — U.S. -, 111 S.Ct. 2491, 2504 n. 9, 115 L.Ed.2d 555 (1991); McMillan, 477 U.S. at 87-88, 106 S.Ct. at 2416-17; Mullaney v. Wilbur, 421 U.S. 684, 697-98, 95 S.Ct. 1881, 1888-89, 44 L.Ed.2d 508 (1975); Specht v. Patterson, 386 U.S. 605, 609, 87 S.Ct. 1209, 1212, 18 L.Ed.2d 326 (1967); Chandler v. Fretag, 348 U.S. 3, 75 S.Ct. 1, 99 L.Ed. 4 (1954); Nichols v. McCormick, 946 F.2d 695, 696 (9th Cir.1991) (Norris, J., dissenting from the denial of rehearing en banc). But see Nichols v. McCormick, 929 F.2d 507, 509-11 (9th Cir.1991).
. Having decided that a liberty interest was at stake, Justice Souter carried out the particularized Mathews v. Eldridge balancing inquiry, reaching the conclusion that notice that the judge was considering sua sponte upward departure was not constitutionally required because notice would not significantly decrease the risk of error in the sentencing process. See Burns, 111 S.Ct. at 2192-96 (Souter, J., dissenting).
. Justices Blackmun, Stevens, Scalia and Kennedy joined Justice Marshall’s opinion for the Court. Justices White and O’Connor joined Justice Souter's dissent. The Chief Justice agreed with Justice Souter's statutory analysis, but did not join the part of Justice Souter’s opinion that carried out the liberty interest analysis.
. The majority fails to conduct the particularized inquiry mandated by Mathews v. Eldridge. *674Instead, the majority relies on cases in which the inquiry was conducted in totally different contexts. See, e.g., Hewitt v. Helms, 459 U.S. 460, 473-74, 103 S.Ct. 864, 872, 74 L.Ed.2d 675 (1983); Greenholtz, 442 U.S. at 13-14, 99 S.Ct. at 2106-07. These cases do not excuse the majority’s failure to conduct a particularized inquiry by weighing the liberty interest at stake against the government's interest in a lower standard of proof in the factfinding process.
. The majority fails to engage in an interpretation of the statute by reference to the Congressional goals underlying it. Reading the majority opinion, we never find out whether the preponderance standard comports with the statutory goals at all or whether a higher standard would better serve those goals.
. The Eighth Circuit is among the circuits that have adopted the preponderance of evidence standard of proof for fact-finding under the Guidelines. See United States v. Sleet, 893 F.2d 947, 949 (8th Cir.1990). But see United States v. Townley, 929 F.2d 365 (8th Cir.1991) (questioning whether the preponderance standard satisfies due process when applied to prove uncharged crimes that increase the sentence sevenfold).
. The Third Circuit, in United States v. Kikumu-ra, 918 F.2d 1084 (3rd Cir.1990), rebelled and refused to permit application of the preponderance standard when conduct proved at sentencing generated a 10-fold increase in the sentence. Likewise, the Eighth Circuit in United States v. Townley, 929 F.2d 365 (8th Cir.1991), agreed with Kikumura. And, our own court, in United States v. Brady, 928 F.2d 844 (9th Cir.1991), refused to follow other circuits which have allowed conduct of which a defendant has been acquitted to be considered for the purpose of sentence enhancement.