dissenting.
I respectfully dissent. I believe that two significant factors — which the majority has left unmentioned — implicate Mobley’s right to both substantive and procedural due process. As these two factors clearly demonstrate, the enhancement of Mobley’s sentence under guideline § 2K2.1(b)(2) operated to relieve the government both from proving criminal intent and also from meeting a sufficient burden of proof. Because I do not believe that a sentencing enhancement under the Guidelines may be substituted for a criminal conviction consistent with substantive due process, or alternatively, that the preponderance standard here satisfies procedural due process, I would reverse and remand.
It is undisputed that the government elected not to charge Mobley with receiving or transporting a stolen firearm in violation of 18 U.S.C. §§ 922(i) or (j) (“stolen firearms charges”).1 Whereas the criminal *460complaint had contemplated both a charge under 18 U.S.C. § 922(g) (the “possession charge”), to which Mobley later pled guilty, and a stolen firearm charge, the government omitted a stolen firearm charge from the indictment. Each of the applicable stolen firearms charges require the government to prove that the defendant “[knew] or [had] reasonable cause to believe that the firearm ... was stolen.”2 The combination of either one of these stolen firearms charges with Mobley’s possession charge would have mandated the same Sentencing Guideline range that Mobley received as a result of the guideline § 2K2.1(b)(2) enhancement.3
Nevertheless, having convicted Mobley of only a possession charge, during sentencing the government sought a two-level enhancement under guideline § 2K2.1(b)(2) because the firearm was stolen. In my view this choice to proceed under the Guidelines rather than pursuant to a criminal statute poses due process implications when, as here, the application of the guideline enhancement resulted in a guideline sentence range equivalent to the one Mob-ley would have been subject to had he been convicted of a stolen firearm crime plus the possession charge. Because the government conceded that it could not have proven the scienter element of either of the stolen firearms crimes and instead substituted the use of a sentencing guideline to obtain the same sentence, Mobley’s substantive due process guarantee is implicated.4 The government obtained the same *461term of imprisonment by seeking a guideline enhancement in lieu of a formal charge and conviction.
This strategy also obviated the government’s need to meet the higher evidentiary and proof standards applicable prior to conviction. Procedural due process is implicated by this application of guideline § 2K2.1(b)(2), where the government may seek the same penalty afforded by a conviction through the lesser due process protections afforded during sentencing proceedings. As this case so plainly demonstrates, in certain situations the Guidelines provide the government a convenient detour around fundamental constitutional protections afforded an accused before conviction such that the government may seek the same punishment unfettered by the constraints of producing admissible evidence and proving its case beyond a reasonable doubt.
I.
A.
I would hold that, as applied in this case, guideline § 2K2.1(b)(2) violates Mobley’s guarantee of substantive due process. The government admitted that it did not seek a conviction for a stolen firearm offense because it lacked sufficient evidence to prove that Mobley committed the crime of “Knowing or having reasonable cause to believe that the firearm was stolen.” 18 U.S.C. §§ 922(i) & (j). Yet application of guideline § 2K2.1(b)(2) yielded the same sentence as a second conviction would have and obviated the need for proof of scienter.
The mechanical formulation of a sentencing guideline range within which a district court must sentence a defendant — absent grounds for departure — creates a liberty interest in a particular sentencing guideline range. In contrast to the pre-Guidelines system, which permitted sentencing judges to employ their discretion when assigning penal consequences to sentencing facts subject only to statutory limitations, now, upon proof of specified sentencing facts, the Guidelines calibrate an inflexible and definite sentencing range. See Burns v. United States, — U.S. -, 111 S.Ct. 2182, 2184, 115 L.Ed.2d 123 (1991) (“The only circumstance in which the district court can disregard the mechanical dictates of the Guidelines is when it finds [limited circumstances warranting departure]”). Specifically, here, upon the finding that the gun was stolen, guideline § 2K2.1(b)(2) prescribes a two level enhancement, which raised Mobley’s guideline range from 15-21 months to 21-27 months. Under the Guidelines, “judicial factfinding is substituted for judicial discretion as the currency of the new sentencing regime” and therefore creates a “liberty interest in a sentence within the relevant Guidelines range.” United States v. Restrepo, 946 F.2d 654, 665 (9th Cir.1991) (en banc) (Norris, J., dissenting).5
The mechanical effect of the Guidelines, which leaves no discretion for the district court, triggers one of the factors that implicates substantive due process according to the teaching of McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986). McMillan explained one feature that redeemed the Pennsylvania Mandatory Minimum Sentencing Act from due process infirmity: the fact that the Act increased only the minimum sentence and “neither alter[ed] the maximum penalty for the crime committed nor create[d] a separate offense calling for a separate penalty....” 477 U.S. at 88-89. Such is not the case where the Sentencing Guidelines range, rather than the statutorily prescribed sentence, controls and the application of a guideline enhancement increases that guideline range.
*462The majority finds that a defendant possesses a liberty interest in a sentence within the statutory range and analogizes this case to McMillan. But this case differs from McMillan, where the sentencing factor did not operate to increase the defendants’ maximum sentence. Lacking reasons for departure, the district court was constrained to sentence Mobley within his sentencing guideline range, rather than the statutory range. McMillan, however, specified as one of the reasons for upholding the constitutionality of the sentencing factor that it only raised the minimum and not the maximum statutory sentence.
It is important to note that had the district court sentenced Mobley to a term of 21 months imprisonment — the minimum sentence afforded after the guideline enhancement and the maximum before the enhancement — Mobley would simply have received the maximum sentence permissible for his offense of conviction. This result would not have implicated a due process concern because Mobley has no post-conviction constitutional right to a particular sentence within the Guideline range. Criminal defendants do, however, have a liberty interest in their sentencing guideline range itself. See Burns, — U.S. -, 111 S.Ct. at 2192 (Souter, J., dissenting); cf. Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979) (no liberty interest in early release date prior to expiration of sentence). Thus because the district court imposed a sentence of 27 months, the maximum sentence available after the two level enhancement of guideline § 2K2.1(b)(2), Mobley’s circumstance squarely presents a liberty interest.
B.
The majority reasons that guideline § 2K2.1(b)(2) rationally furthers the purposes of the 1968 Gun Control Act, positing that “[the Act] is part of a comprehensive scheme to regulate the movement of firearms,” Majority at 453, and guideline § 2K2.1(b)(2) “advances the overall regulatory scheme” because it “regulates” transactions in stolen firearms, which are more likely to be used in criminal activity. Majority at 454. While I agree with the majority’s assertion that the guideline enhancement at issue here was promulgated to address regulatory concerns, Majority at 453-54; see, e.g., U.S.S.G. § 2K2.1, comment. (backg’d.) (“[¡Independent studies show that stolen firearms are used disproportionately in the commission of crimes”), I do not find guideline § 2K2.1(b)(2), insofar as it purports to be a strict liability enhancement, to be rationally related to a legislative purpose because the Gun Control Act evidences another explicit legislative purpose. As the government admits, to convict Mobley for a stolen firearm charge, it would have had to prove that Mobley “[knew] or [had] reasonable cause to believe that the firearm ... was stolen.” 18 U.S.C. § 922(0 or (j).
The majority cites a regulatory purpose underlying guideline § 2K2.1(b)(2) to support its conclusion that that purpose defeats the need for implying a scienter element into guideline § 2K2.1(b)(2). In the context of a statutory construction analysis, I am cognizant that although “[t]he existence of mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence,” Dennis v. United States, 341 U.S. 494, 500, 71 S.Ct. 857, 862, 95 L.Ed. 1137 (1951), the presumption against strict liability for criminal sanctions attaches chiefly to those offenses derived from the common law as distinguished from regulatory offenses, and the legislature may create an offense without requiring scienter in any form. See Morissette v. United States, 342 U.S. 246, 259, 72 S.Ct. 240, 247, 96 L.Ed. 288 (1952). In this regard, courts look to “the peculiar nature and quality of the offense.” Id. The Supreme Court has “referred to ‘... a now familiar type of legislation whereby penalties serve as effective means of regulation,’ and continued, ‘such legislation dispenses with the conventional requirement for criminal conduct — awareness of some wrongdoing. In the interest of the larger good it puts the burden of acting at hazard upon a person otherwise innocent but standing in responsible relation to a public danger.’ ” Id. at 259-60, 72 S.Ct. at *463247-48 (quoting United States v. Dotterweich, 320 U.S. 277, 280-81, 64 S.Ct. 134, 136, 88 L.Ed. 48 (1943)). As we have noted,
[Tjhough the result may appear harsh, it is well established that criminal penalties attached to regulatory statutes intended to protect public health, in contrast to statutes based on common law crimes, are to be construed to effectuate the regulatory purpose.
United States v. Johnson & Towers, Inc., 741 F.2d 662, 665 (3d Cir.1984), cert. denied, Angel v. United States, 469 U.S. 1208, 105 S.Ct. 1171, 84 L.Ed.2d 321 (1985); see United States v. Green Drugs, 905 F.2d 694, 696 (3d Cir.), cert. denied, — U.S. -, 111 S.Ct. 518, 112 L.Ed.2d 530 (1990) (noting the distinction between the “advancement of some social purpose rather than the punishment of the crime”).
I depart from the majority, however, because it has mismatched portions of the Gun Control Act with guideline § 2K2.1(b)(2). The pertinent match is highlighted by the government’s choice; thus we should evaluate Mobley’s constitutional claim against the conflict between the scienter element of the stolen firearms crimes and the lack of a scienter element in a stolen firearm guideline enhancement of § 2K2.1(b)(2), where both yield the same penalty.
I begin with the observation that in the Sentencing Reform Act of 1984, Congress delegated the task of developing a real offense sentencing scheme to the Sentencing Commission. This delegation survived a separation of powers challenge in Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989), where the Supreme Court determined that Congress had properly delegated authority to the United States Sentencing Commission to create sentencing standards, reasoning that in the Sentencing Reform Act of 1984, Congress had set forth more than merely “intelligible principle[s]” or minimal standards required to delegate exactly “the sort of intricate, labor-intensive task for which delegation to an expert body is especially appropriate.” Id. at 379, 109 S.Ct. at 658. The Court found that, as a whole, the Sentencing Guidelines were promulgated with the proper legislative authority. Id., see also United States v. Frank, 864 F.2d 992 (3d Cir.1988) (sentencing scheme which emphasizes generally acceptable retributive and deterrent purposes is not so fundamentally unfair as to warrant due process condemnation), cert. denied, 490 U.S. 1095, 109 S.Ct. 2442, 104 L.Ed.2d 998 (1989); United States v. Brady, 895 F.2d 538 (9th Cir.1990) (the Sentencing Guidelines do not infringe an individual’s right to due process in sentencing; the legislature is empowered to determine both the factors and the weighing of them for sentencing purposes). Further, the Sentencing Guidelines must conform to the direction contained in its enabling legislation. United States v. Nottingham, 898 F.2d 390, 393 (3d Cir.1990). And to the extent that the enabling legislation contains specific direction, the Sentencing Guidelines must comport with that direction. Id. at 393.
The fact that congressional delegation of general authority to the Sentencing Commission is constitutionally permissible does not foreclose a consideration of whether a particular guideline transgresses substantive due process in a larger context. The difficulty presented by this case consists in inconsistent legislative statements. On the one hand, the Sentencing Commission was charged, generally, with creating Guidelines based upon real offense, rather than only charged offense, conduct, 18 U.S.C. § 3553(a)(1); on the other hand, Congress has specifically required proof of scienter as an element of the stolen firearm crimes. I believe that this latter, and more specific, congressional requirement should control the substantive due process inquiry. Thus I would not reject Mobley’s due process challenge upon a finding that the guideline enhancement is rationally related to the legislative intent expressed in the enabling act given the more specific contradictory intent in the stolen firearms crimes. Where, as here, Congress has spoken more directly to an issue, we should hesitate to invoke general legislative statements in support of a guideline that so clearly controverts a more explicit legislative intention. Id. at 393.
*464As the government’s choice in this case demonstrates, Congress has failed to give specific direction. Instead, Congress authorized enhancements based on real offense conduct in the Guidelines’ enabling legislation, but also required that in order for criminal consequences to attach to a stolen firearms crime, criminal intent must be proved. 18 U.S.C. § 922(i) and (j). Where Congress has spoken with more than one voice on the question of whether scienter is required for criminal consequences to attach to the possession of a stolen firearm, deleting that proof requirement when enhancing a sentencing guideline range does not comport with Congress’ direction. See Restrepo, 946 F.2d at 673 (Norris J., dissenting) (“the majority attributed 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 a mere preponderance”).
C.
In McMillan, the Court delineated factors that would implicate due process limitations, although in upholding the Pennsylvania Mandatory Minimum Sentencing Act, it found that the Act did not necessitate a “precise definition of] the constitutional limits.” 477 U.S. at 86, 106 S.Ct. at 2416. The Court explained that the sentencing factor at issue in McMillan— visible possession of a firearm during the commission of the underlying felony — had traditionally been a sentencing consideration and had never been an element of any of the underlying felonies. Recognizing the possibility that the due process principle of In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), would be compromised if a legislature could reclassify as merely a sentencing factor a fact that traditionally comprised an element of a crime, McMillan explained:
The specter raised by petitioners of States restructuring existing crimes in order to “evade” the commands of Win-ship just does not appear in this case. As noted above, § 9712’s enumerated felonies retain the same elements they had before the Mandatory Minimum Sentencing Act was passed. The Pennsylvania Legislature did not change the definition of any existing offense. It simply took one factor that has always been considered by sentencing courts to bear on punishment — the instrumentality used in committing a violent felony — and dictated the precise weight to be given that factor if the instrumentality is a firearm. Pennsylvania’s decision to do so has not transformed against its will a sentencing factor into an “element” of some hypothetical “offense.”
477 U.S. at 89-90, 106 S.Ct. at 2418 (footnote omitted). Mobley’s indictment and sentence do indeed present the “specter” of “restructuring” crimes into sentencing factors, as demonstrated by the government’s choice to either charge Mobley with a violation of either 18 U.S.C. §§ 922(i) or (j) or to pursue an equivalent guideline sentencing range by invoking the guideline § 2K2.1(b)(2) enhancement, which was not subject to a scienter requirement.6 Con*465gress has not remained silent on the scien-ter requirement and delegated all of its authority to the Sentencing Commission; rather, Congress has explicitly made scien-ter a requirement in substantive offenses under which the government declined to prosecute Mobley. Thus Congress has not indicated that the offense of possession of a stolen gun is a mere regulatory one for which scienter is not a required element.
Where Congress has chosen to require scienter for proof of a crime, I am not persuaded that Congress’ designee, the Sentencing Commission, may transform that same conduct, minus scienter, into a sentencing factor, which when applied yields an equivalent sentence range as would an additional conviction. Further, I am not persuaded that the broad delegation of authority for creating the Sentencing Guidelines reaches so far nor that the regulatory exception to the presumption against strict liability in a statutory construction context permits this result, which is inconsistent with due process. The absence of a singular expression of congressional intent, combined with the manifest conflict between the scienter required in the stolen firearms crimes versus guideline § 2K2.1(b)(2), underscores the lack of congressional guidance with which we proceed and demands caution in depriving Mobley of his liberty interest.
Therefore, I would hold that where, as here, the government seeks a sentence enhancement under guideline § 2K2.1(b)(2) in lieu of bringing a formal charge for possession of a stolen firearm, the government must prove scienter. This construction of guideline § 2K2.1(b)(2), as applied to these facts, avoids an “unnecessary due process problem.” United States v. Perry, 788 F.2d 100, 115 (3d Cir.), cert. denied, 479 U.S. 864, 107 S.Ct. 218, 93 L.Ed.2d 146 (1986); see, e.g., 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) (“[w]here 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”).
II.
Mobley poses an additional procedural due process issue that presents an alternative ground for reversal. The procedural due process issue is also crystallized by the fact that the application of the guideline enhancement resulted in a sentence equal to that which Mobley would have received had he been convicted of two offenses. This is so even if an implicit scienter element is incorporated into guideline § 2K2.1(b)(2). Identical elements of proof would not equalize the procedural disparity between pre- and post-conviction proceedings. That is, Mobley’s interest in post-conviction procedural due process is heightened because the penalty imposed upon post-conviction factfinding equals the penalty that would have attached pursuant to an additional offense of conviction. The disparity in the burden of proof afforded a defendant before and after conviction points out the need for a higher post-conviction standard of proof under this guideline as applied.
Nothing in the Guidelines themselves requires a preponderance of the evidence standard for sentencing factfinding. In fact, the Sentencing Commission has emphasized that under the Guidelines, sentencing hearings would be imbued with *466more formality than under the old system, precisely because of the mandatory consequences of the factfinding. U.S. Sentencing Comm’n, Guidelines Manual § 6A1.3, p.s., comment. (1990). The Commission has expressly left to the courts the task of determining appropriate standards of proof under the Guidelines System.
Under the pre-Guidelines sentencing system, by contrast to the current system, the district court could mete out a sentence within the statutory range by weighing sentencing factors as he or she saw fit. A defendant possessed a constitutional liberty interest only in a sentence within that statutory range. Yet under the Guidelines, the statutory limits no longer control, the district court must sentence a defendant within the Guideline range absent extraordinary reasons for departure. Sentencing factors thus weigh significantly more heavily because they alter the Guideline range, in which the Guidelines have created a constitutional liberty interest. In McMillan, the Court explained that the Pennsylvania Act did not implicate a liberty interest because it increased only the minimum sentence upon the finding of a sentencing fact, leaving the maximum penalty unchanged. McMillan, 477 U.S. at 87, 88, 106 S.Ct. at 2417. The liberty interests of the defendants in McMillan, whose sentences could not exceed the statutory maximum, were not triggered. By contrast, Mobley’s liberty interest in a sentence within his guideline range is triggered because the Guideline § 2K2.1(b)(2) enhancement increased both the minimum and the maximum of the guideline range.
McMillan makes untenable the reasoning in United States v. Singleton, 946 F.2d 23 (5th Cir.1991), upon which the majority relies, see Majority at 457, because the court failed to recognize the distinction between the pre- and post-Guidelines sentencing systems. There, discussing identical “stolen gun” language in guideline § 2K2.1(b)(1), the Court of Appeals for the Fifth Circuit stated: “The decision ... to consider this factor before the guidelines took effect was not unconstitutional, and the Commission’s decision to continue consideration of this factor today does not change the result.”
Our pre-Guidelines decision of United States v. Davis, 710 F.2d 104, 105-07 (3d Cir.), cert. denied, 464 U.S. 1001, 104 S.Ct. 505, 78 L.Ed.2d 695 (1983), in which we held that a dangerous special offender sentencing enhancement subject to a preponderance standard did not violate due process, also differs from the Guidelines because its application did not result in the meting out of a determinate sentence. The statutory enhancement at issue in Davis provided that upon the prerequisite fact-finding, the district court shall sentence the defendant “for an appropriate term not to exceed twenty-five years and not disproportionate in severity to the maximum term otherwise authorized by law for the [underlying] felony.” Davis, 710 F.2d at 105 (emphasis added). The enhancement itself left discretion in the hands of the sentencing judge.
We have previously attached significance to the due process implications of these distinctions between the old and new sentencing systems. As we discussed at length in United States v. Kikumura, 918 F.2d 1084 (3d Cir.1990):
Though long recognized as a practical necessity, real offense sentencing can create the potential for significant unfairness. This is so because every factual consideration deemed relevant for sentencing purposes must be established through a collateral, post-verdict adjudication at which the applicable procedural protections are significantly lower than those applicable at the trial itself. For example, a criminal defendant enjoys the right to a trial by jury, see U.S. Const, amend. VI, but that right does not exist at sentencing, see, e.g., Spaziano v. Florida, 468 U.S. 447, 459, 104 S.Ct. 3154, 3161, 82 L.Ed.2d 340 (1984). At trial, an element of a charged offense must be proven beyond a reasonable doubt, see In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970), but most pertinent sentencing facts need only be established by a preponderance of evidence, see McMillan v. Pennsylvania, 477 U.S. 79, 91, 106 S.Ct. 2411, 2418, *46791 L.Ed.2d 67 (1986) (holding that the preponderance standard is generally constitutional); United States v. McDowell, 888 F.2d 285, 290-91 (3d Cir.1989) (holding that the preponderance standard is generally appropriate in guidelines sentencing). At trial, a jury may consider evidence only if it is admissible under the Federal Rules of Evidence, and the confrontation clause bars consideration of all admissible hearsay unsupported by either “a firmly rooted hearsay exception” or other “particularized guarantees of trustworthiness,” Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980). At sentencing, by contrast, the Federal Rules of Evidence are inapplicable, see Fed.R.Evid. 110(d)(3); Williams v. New York, 337 U.S. 241, 250-51, 69 S.Ct. 1079, 1084-85, 93 L.Ed. 1337 (1949) (endorsing the use of hearsay evidence at sentencing), and hearsay normally may be considered subject only to the modest due process requirement that it bear “some minimal indicium of reliability beyond mere allegation,” United States v. Baylin, 696 F.2d 1030, 1040 (3d Cir.1982); see also 18 U.S.C. § 3661 (“No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider the purpose of imposing an appropriate sentence.”); United States v. Sciarrino, 884 F.2d 95, 97 (3d Cir.) (holding that the reliability analysis is not heightened by the shift from an unstructured sentencing regime to a more determinate guidelines system), cert. denied, 493 U.S. 997, 110 S.Ct. 553, 107 L.Ed.2d 549 (1989).
918 F.2d at 1099-1100. Following McMillan’s instruction, we held in Kikumura that where a departure from the guideline range is so great as to constitute “the tail which wags the dog of the substantive offense,” we would require that the facts underlying the departure be proved at least by clear and convincing evidence. Id. at 1101. Similar due process concerns require that a clear and convincing standard should apply in cases such as Mobley’s where the application of a sentencing guideline will automatically yield a sentence equivalent to a sentence that would have been imposed had the defendant been convicted of a crime proscribing the same offense-related conduct. The balancing test prescribed by Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), requires no less.
In his dissent to Restrepo, Judge Norris eloquently explained the need for a burden of proof exceeding a preponderance standard and articulated why an increased standard of proof would be consistent with the underlying goals of the Sentencing Guidelines:
A preponderance burden of proof, which allocates the risk of error nearly evenly, see Addington v. United States, 441 U.S. [418] 423, [99 S.Ct. 1804, 1808, 60 L.Ed.2d 323 (1979)] allows a fact to be considered true if the factfinder is convinced that the fact is more true than not, or to put it differently, if the fact finder 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. The Supplementary Report, [on the Initial Sentencing Guidelines and Policy Statements (1987)], 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, [How Unreliable Factfinding Can Undermine Sentencing Guidelines, 95 Yale L.J. 1258 (1986) ], at 1260.
*468Restrepo, 946 F.2d at 677 (Norris, J., dissenting).
Within the inflexible confines of the Sentencing Guidelines system, the preponderance of the evidence standard here creates an undue risk of an erroneous deprivation of a criminal defendant’s liberty. As I mentioned previously, we characterized the twelve-fold upward departure in Kikumu-ra as “a tail which wags the dog of the substantive offense,” opining that “[i]n this extreme context, we believe, a court cannot reflexively apply the truncated procedures that are perfectly adequate for all of the more mundane, familiar sentencing determinations.” 918 F.2d at 1101. I would adopt the same reasoning in cases where the government chooses to pursue an equivalent sentence by operation of the Guidelines, rather than seeking a formal conviction for the same conduct.
III.
Because I believe that Mobley’s due process rights are violated by the sentence here I respectfully dissent.
. In footnote 2 to his appellate brief, Mobley states that the government had not anticipated seeking a Sentencing Guidelines enhancement under § 2K2.1(b)(2) prior to the probation officer’s recommendation in the Pre-Sentence Report. At appellate oral argument, the Assistant United States Attorney also stated that the government did not hold back a stolen firearms charge from the indictment in anticipation of seeking an equivalent sentence under the guideline enhancement. Nevertheless, whether this strategy was deliberately devised prior to the indictment, or later embraced, the government did request that the district court apply the enhancement and has defended the district court's sentence in this appeal. Moreover, the Assistant United States Attorney conceded during appellate oral argument that the government did not charge Mobley with a stolen fire*460arms crime in the indictment because “I don't believe we could prove beyond a reasonable doubt that he knew the gun was stolen." There is ample information to show that the government circumvented difficulties with proof by choosing to pursue an equivalent Sentencing Guideline range pursuant to the § 2K2.1(b)(2) enhancement.
. 18 U.S.C.A. § 922 provides, in pertinent part:
(i) It shall be unlawful for any person to transport or ship in interstate or foreign commerce, any stolen firearm or stolen ammunition, knowing or having reasonable cause to believe that the firearm or ammunition was stolen.
(j) It shall be unlawful for any person to receive, conceal, store, barter, sell, or dispose of any stolen firearm or stolen ammunition, or pledge or accept as security for a loan any stolen firearm or stolen ammunition, which is moving as, which is a part of, which constitutes, interstate or foreign commerce, knowing or having reasonable cause to believe that the firearm or ammunition was stolen. (West 1976) (emphasis added).
. At appellate oral argument, Mobley’s counsel represented that Mobley received the same guideline sentencing range that he would have had he been convicted of a stolen firearms charge in addition to the possession charge. As the government has not challenged the accuracy of that factual assertion, I accept it as true. As well, I note that an additional conviction for Mobley under either 18 U.S.C. §§ 922(i) or (j) would have triggered the application of guideline § 2K2.1, see the cross-reference to § 2K2.1 in § 2K2.2(c) that is invoked when the former would yield a greater offense level, rendering an offense level of 12 after a two level enhancement because the firearm was stolen and a two level reduction for acceptance of responsibility.
.Similar due process concerns have arisen in a number of cases. See, e.g., United States v. Restrepo, 946 F.2d 654, 664 (9th Cir.1991) (en banc) (Norris, J., dissenting); United States v. Hill, 943 F.2d 873, 876 (8th Cir.1991) (Heaney, J., concurring and dissenting) (increasing the guideline range on the basis of uncharged conduct known to the government before the indictment violates due process); United States v. Miller, 910 F.2d 1321, 1329 (6th Cir.1990) (Merritt, J., dissenting) (“The problem before us arises from the need to interpret the Sentencing Guidelines regarding relevant uncharged conduct and the aggregation of uncharged offenses in light of the superior legal principles of the enabling legislation authorizing the Guidelines and the constitutional provisions regarding notice, self-incrimination, confrontation, waiver and due process”), cert. denied — U.S. -, 111 S.Ct. 980, 112 L.Ed.2d 1065 (1991); United States v. Payne, 940 F.2d 286, 293 (8th Cir.) (Heaney, J., concurring and dissenting), cert. denied sub. nom. Bogan v. United States, — U.S. -, 112 S.Ct. 616, 116 L.Ed.2d 638 (1991) (challenging a guideline enhancement based on amounts of crack cocaine involved that were neither charged in the indictment nor proven at trial). As Chief Judge Merritt has forcefully argued, this practice should not be permitted because it gives the prosecution the opportunity "to indict for less serious offenses which are easy to prove and then expand them in the probation office.” Miller, 910 F.2d at 1332 (Merritt, C.J., dissenting). Although the defendants in Payne were charged with conspiracy to distribute powder cocaine, which carries a significantly less harsh penalty than a conviction for crack cocaine, "the government’s failure to charge crack meant that the defendants did not have notice of the charges and likely penalties against them.” Moreover, the government ben-efitted from the relaxed evidentiary safeguards *461and the lower burden of proof available to it at the sentencing proceeding. "I do not believe the existence of crack to be merely a 'sentencing fact’ when such a factual finding can mandate a doubling or tripling of a defendant’s sentence.” The uncharged conduct then becomes “the tail that wags the dog of the substantive offense.” Payne, 940 F.2d at 295.
. Many commentators have remarked that the inflexible method of calculating sentence ranges under the Guidelines has effected a shift from judicial to prosecutorial discretion. For a compelling explication of this shift, see, e.g., United States v. Harrington, 947 F.2d 956 (D.C.Cir.1991) (Edwards, J., concurring).
. Because this case implicates "restructuring” to delete a scienter requirement, it differs from United States v. Martinez, 924 F.2d 209 (11th Cir.1991), cited by the majority. Majority Typescript at 457. There the district court made an explicit factual finding of scienter, prompting the court of appeals to explain: "Appellants’ protestations that they were in fact unaware of the firearm possession do not upset the district court’s finding that the possession of the firearm was reasonably foreseeable.” Id. at 210. Mobley contends precisely the opposite, specifically, that his substantive due process was violated because the district court made no finding of scienter pursuant to the guideline enhancement.
Likewise, the cases concerning drug offenses, cited in footnote 2 of the majority opinion, involved enhancements for quantities of drugs and do not diminish Mobley’s substantive due process claim. The use of additional uncharged quantities of drugs as a guideline range enhancement does not threaten to punish a defendant without a finding of criminal intent. By analogy, had Mobley’s sentence been enhanced because he possessed more than one firearm in violation of section 922(g), no due process issue would be implicated. Our decision in Cianscewski, 894 F.2d at 74, upholding a sentence enhancement based upon a co-defendant’s conduct, similarly did not involve an issue of scien-*465ter because the defendant had been convicted of conspiracy, and much like the drug offenses cases, his guideline range was enhanced for additional quantities of offenses committed during the course of the conspiracy. More specifically, that the co-defendant was acquitted based upon an entrapment defense, "in no way precluded the district court from finding that [the defendant ] was so predisposed, and therefore not excused from otherwise criminal activity.” Id. at 81 (emphasis in original). Moreover, the district court determined the guideline range in Frierson, 945 F.2d at 650, after holding an evi-dentiary hearing and finding "that Frierson had possessed a weapon during the commission of the robbery ...” Id. at 653. While Frierson does not fully support my position, neither does it fully support the majority’s because there the district court made particular fact findings in contrast to the general opinion voiced during Mobley's sentencing hearing.