with whom RICHARD S. ARNOLD, Chief Judge, LAY, Senior Circuit Judge, and McMILLIAN, Circuit Judge, join, dissenting.
Over two hundred years ago, this country adopted the first ten amendments to the Constitution. The fifth and sixth amendments state:
AMENDMENT Y
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury ..., nor be deprived of ... liberty ... without due process of law....
AMENDMENT VI
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.
Today, in this case, the Government prosecutor, under the aegis of the Sentencing Commission Guidelines, asserted the following propositions to the sentencing judge and urges them upon this court:
1. That Galloway should be sentenced for seven additional separate and independent thefts of property from interstate shipments even though (a) no grand jury ever indicted Galloway for those crimes; (b) the Government never tried Galloway for those offenses; (c) no jury ever found Galloway guilty of those offenses.
2. Further, notwithstanding absence of notice of those charges (including indictment), trial and conviction, the Government can and will punish Galloway for these uncharged crimes without proving Galloway guilty of any of them by proof “beyond a reasonable doubt,” but rather by a preponderance of the evidence.
The district judge for the Eastern District of Arkansas, Garnett Thomas Eisele, now a senior judge with a fine reputation as a distinguished and experienced jurist, cited the express words of the fifth and sixth amendments in rejecting as unconstitutional the Government’s contentions.
Judge Eisele in part stated in his conclusion:
I am going to conclude as a matter of law that in this case the Government may not, in the posture of this record, enhance the sentence of the defendant by proving by a preponderance of the evidence the conduct and acts referred to in paragraphs 13 through 19 [uncharged *437crimes in presentence report] because I feel it would violate the defendant’s constitutional rights. What we have here is what I have referred to as the Russianiz-ing of our Constitution. The language is quite clear, but we can, by sophistry or otherwise treat it and ignore it and that’s what happened in other countries. I don’t want to see it happen here.
United States v. Galloway, 943 F.2d 897, 899 (8th Cir.1991), vacated, order of Nov. 20, 1991 (quoting Sent. Tr. at 28-29).
We dissenters applaud Judge Eisele's courage and integrity in advising the Government prosecutor in strong, clear language that his proposed action violates the Constitution.
The unanimous panel in this case ruled that the relevant conduct guideline, U.S.S.G. § 1B1.3, as applied to Galloway’s conduct here in question (section lB1.3(a)(2)), exceeded the authority Congress granted to the Sentencing Commission. United States v. Galloway, 943 F.2d 897 (8th Cir.1991), vacated, order of Nov. 20, 1991. This en banc court’s rejection of the non-constitutional ground for affirming the district court now requires that we address the constitutional questions in this dissent.
We conclude that section lB1.3(a)(2) flagrantly violates the Constitution. This regulation punishes persons for alleged crimes that have not been the subject of notice, indictment or trial. If the former Soviet Union or a third world country had permitted such a practice, human rights observers would condemn those countries.1
As we demonstrate in the discussion below, the majority mistakenly relies on case law that pertains generally to indeterminate sentencing (where the judge considers all factors about the offender in setting a sentence within statutory authority and where the parole commission takes a second look at the sentencing by setting a parole eligibility date). To apply that precedent to the mechanistic sentencing under the guidelines (probation officers plug into a computer the data prescribed by the commission and out pops the flat time, no parole sentence which the judge must impose) defies logic and is just plain wrong and unfair.
I.
A. Background
Eddie Lee Galloway pled guilty to one count of interstate theft. Galloway admitted to stealing goods worth $37,000 on March 22, 1990. If the Guidelines only considered the offense of conviction in determining Galloway’s sentence, then the range for his sentence would be twenty-one to twenty-seven months. The district court actually sentenced Galloway to twenty-four months. However, interstate theft is an offense that can be grouped with similar offenses in determining a sentence under section 3D1.2. When an offense can be grouped with similar offenses, then the relevant conduct to be examined in determining an offender’s base offense level under section lB1.3(a)(2) is “all such acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction.” 2 The presentence report [PSR] alleges that Galloway committed seven other interstate thefts between December 1988 and March 1990 and stole goods worth a total of $1,009,950, based on interviews with FBI agents. If the sentencing judge, on remand, finds by a preponderance of the evidence that these separate crimes occurred, and that Galloway played a “leadership *438role” in the offenses, then Galloway faces a sentencing range of sixty-three to seventy-two months. That sentencing range would be the same, whether Galloway had pled guilty to one or eight counts of theft.
Only in the world of Alice in Wonderland, in which up is down and down is up, and words lose their real meaning, does such a sentence comply with the Constitution. Galloway must receive the benefit of the following procedures before he can be punished for the alleged crimes that occurred separately from his offense of conviction:
1. Fair Notice
Galloway never received notice that he would be punished for the seven uncharged thefts alleged in the PSR until after he pled guilty. The fifth amendment requires that a defendant receive fair notice by “presentment or indictment.” The sixth amendment also requires a defendant to be informed of the “nature and cause of the accusation.” See also Cole v. Arkansas, 833 U.S. 196, 201, 68 S.Ct. 514, 517, 92 L.Ed. 644 (1948). “This repetition of the right indicates the significance that the Founders attached to the right to receive fair notice of the crime that a defendant must defend against.” United States v. Miller, 910 F.2d 1321, 1331 (6th Cir.1990) (Merritt, C.J., dissenting), cert. denied, — U.S.-, 111 S.Ct. 980, 112 L.Ed.2d 1065 (1991). The Guidelines have created a system where a defendant is not informed of the changing nature of the charges against him until the probation office issues the PSR, which occurs after the trial or guilty plea. Galloway, as a defendant, pleaded guilty to one count of interstate theft. Little did he realize the trap the Guidelines had set for him.
2. Jury Trial
The sixth amendment provides that in all criminal prosecutions, the accused shall enjoy the right to a speedy jury trial. The Supreme Court has held that the sixth amendment mandates a jury trial in all cases where a defendant faces a penalty of more than six months in prison. Baldwin v. New York, 399 U.S. 66, 72-74, 90 S.Ct. 1886, 1890-91, 26 L.Ed.2d 437 (1970). In jury trials, the Federal Rules of Evidence apply, and the court must exclude all hearsay statements that do not fit under a firmly rooted exception to the hearsay rule to comply with the Confrontation Clause. See White v. Illinois, — U.S.-,-, 112 S.Ct. 736, 741-42, 116 L.Ed.2d 848 (1992). The Government in this case proposes to prosecute Galloway at the sentencing hearing for committing seven crimes in addition to the one to which he pled guilty using testimony which may contain little more than rumor, gossip and what the lawyers recognize as hearsay — evidence courts have always considered unreliable. The Government seeks not to penalize by proof of guilt beyond a reasonable doubt, but rather by proof by a mere preponderance of the evidence that the crimes occurred. By such chimerical proof, the Government seeks to add an additional three years of imprisonment to Galloway’s sentence. The Constitution, however, requires that the Government prosecute Galloway for those crimes in front of a jury under usual rules of evidence.
Under the Guidelines none of the above guarantees apply to the sentencing phase of a trial. The Guidelines system thus degrades the role of the jury by “invit[ing] the prosecutor to indict for less serious offenses which are easy to prove and then expanding] them in the probation office.” Miller, 910 F.2d at 1332 (Merritt, C.J., dissenting); see also Michael H. Tonry, Real Offense Sentencing: The Model Sentencing and Corrections Act, 72 J.Crim.L. & Criminology 1550, 1579 (1981) [hereinafter Tonry, Real Offense \ (arguing that a real offense system “undermine[s] and trivialize^] the law of evidence, the burden of proof, and the substantive law”). We now examine the rationale supporting the guideline increase in Galloway’s sentence which the Government seeks here stemming from the seven additional crimes the Government claims Galloway committed.
II.
A. Discussion of prior case law
What line of reasoning has led courts to conclude that the “real offense” system *439used by the Guidelines does not violate the basic procedural protections that our Constitution mandates? The majority, and every other court which has upheld the use of uncharged conduct against a constitutional challenge, has relied upon two Supreme Court cases as warranting such decision-making: Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1946) and McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986). See, e.g., ante, at 422-23; United States v. Mobley, 956 F.2d 450, 455-57 (3d Cir.1992); United States v. Restrepo, 946 F.2d 654, 656-60 (9th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1564, 118 L.Ed.2d 211 (1992); United States v. Martinez, 924 F.2d 209, 211 (11th Cir.), cert. denied, — U.S. -, 112 S.Ct. 203, 116 L.Ed.2d 163 (1991); United States v. Ebbole, 917 F.2d 1495,1498-99 (7th Cir.1990); United States v. Guerra, 888 F.2d 247, 249-50 (2d Cir.1989), cert. denied, 494 U.S. 1090, 110 S.Ct. 1833, 108 L.Ed.2d 961 (1990); United States v. Wright, 873 F.2d 437, 441-42 (1st Cir.1989). Williams and McMillan upheld the practices of a different and now changed sentencing system, and have become inapplicable precedents as a result.
1. Williams
The majority uses Williams v. New York, 337 U.S. 241, 246, 69 S.Ct. 1079, 1082, 93 L.Ed. 1337 (1949), as support for the proposition that “[historically, courts have been allowed to consider uncharged criminal conduct in determining the sentence a convicted defendant should receive within the maximum penalty permitted by law,” ante, at 419. The Court in Williams permitted a judge to consider uncharged conduct alleged in a presentence report at the sentencing phase of a murder trial. Under the New York system, and the former federal system, a sentencing judge could give a defendant any sentence within the statutory range for a crime. Sentencing judges could consider all aspects of a defendant’s background,3 as well as uncharged conduct, and could give that conduct any weight they chose in assessing a sentence. See United States v. Grayson, 438 U.S. 41, 55, 98 S.Ct. 2610, 2618, 57 L.Ed.2d 582 (1978). Unless the judge overtly stated that a sentence was based on unconstitutional reasons, a defendant had no opportunity to challenge a sentence, and no liberty interest in a particular sentence within the sentencing range. See, e.g., United States v. Tucker, 404 U.S. 443, 446-47, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972). Because judges in the prior system traditionally considered all types of evidence at sentencing that they deemed relevant, the Court in Williams permitted judges to also consider uncharged conduct in determining an offender’s sentence.
Congress rejected that tradition whole-cloth by enacting the Sentencing Reform Act. The Sentencing Guidelines leave little room for discretion by the judge at sentencing. After the judge has made certain required factual findings about the offense, and the offender’s criminal history, the Guidelines mandate a narrow sentencing range. See Burns v. United States, — U.S. -, -, 111 S.Ct. 2182, 2184-85, 115 L.Ed.2d 123 (1991). A finding of relevant uncharged conduct automatically raises the guideline sentence that a defendant faces.4
*440The Guidelines largely prevent judges from considering an offender’s individual characteristics in handing down a sentence, except to the extent that the sentence falls within the guideline range.5 Finally, a defendant has a right to appeal the findings of fact used to determine his sentence. The Guidelines represent a complete rejection of judicial discretion at sentencing except in certain limited circumstances that are not present here. As a result, Williams v. New York, and other cases by the Court that condoned loose standards of factfinding in prior indeterminate sentencing systems, have little relevance as precedent in analyzing the Guidelines’ constitutionality. United States v. Clark, 792 F.Supp. 637, 645-49 (E.D.Ark.1992); Daniel J. Freed, Federal Sentencing in the Wake of Guidelines: Unacceptable Limits on the Discretion of Sentencers, 101 Yale L.J. 1681, 1712-13 (1992); Heaney, supra note 3, at 220; Tonry, Salvaging, supra note 1, at 357. Reliance on Williams is misplaced. Rather, the Latin maxim applies here; ces-sante ratione legis, cessat et ipsa lex (The reason of the law ceasing, the law itself also ceases).
2. McMillan
In McMillan v. Pennsylvania, 477 U.S. 79,106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), the Supreme Court upheld against a due process challenge a provision of a Pennsylvania sentencing statute which mandated a minimum five year sentence for a felon who visibly possessed a firearm during certain felonies. The majority claims that the Guidelines “do not differ from the Pennsylvania statute in any manner material to a constitutional inquiry.” Ante, at 423. I disagree. Crucial differences exist between the Guidelines and the Pennsylvania system condoned by the McMillan Court.
The Court in McMillan explicated federalism concerns and the need to minimize federal interference with state criminal systems. The Court stated that its decision was controlled by Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977), and quoted the following passage from that case:
“It goes without saying that preventing and dealing with crime is much more the business of the States than it is of the Federal Government, Irvine v. California, 347 U.S. 128, 134, 74 S.Ct. 381, 384, 98 L.Ed. 561 (1954) (plurality opinion), and that we should not lightly construe the Constitution so as to intrude upon the administration of justice by the individual States.”
McMillan, 477 U.S. at 85, 106 S.Ct. at 2415-16 (quoting Patterson, 432 U.S. at 201-02, 97 S.Ct. at 2322).
When reviewing a state criminal system under the due process clause of the fourteenth amendment, a federal court needs to give states leeway to make choices about procedures. No such concern about federalism exists when reviewing the Guidelines. *441Federal courts can police the Guidelines’ constitutionality without infringing on states’ ability to experiment with their own systems. See Susan N. Herman, Procedural Due Process in Guideline Sentencing, 4 Fed.Sent.Rep. 295, 297 (1992).
The reasoning of the McMillan Court supports the dissenters, and not the majority.
The McMillan Court found no violation of due process, in part, because the Pennsylvania statute “neither alter[ed] the maximum penalty for the crime committed nor ereate[d] a separate offense calling for a separate penalty; it operate[d] solely to limit the sentencing court’s discretion in selecting a penalty within the range already available to it_” 477 U.S. at 87-88, 106 S.Ct. at 2417. The Pennsylvania statute only limited a judge’s discretion in the minimum sentence imposed on an offender. The Court cited to its decision in Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967), as an example of a sentencing system that violated due process by raising an offender’s maximum penalty without procedural guarantees:
Under the Colorado scheme at issue in Specht, conviction of a sexual offense otherwise carrying a maximum penalty of ten years exposed a defendant to an indefinite term to and including life imprisonment if the sentencing judge made a post-trial finding that the defendant posed “a threat of bodily harm to members of the public, or is an habitual offender and mentally ill,” id., at 607 [87 S.Ct. at 1211]. This finding could be made, without notice or any “hearing in the normal sense,” based solely on a presentence psychiatric report. Id., at 608 [87 S.Ct. at 1211]. This Court held that the Colorado scheme failed to satisfy the requirements of due process, and that the defendant had a right to be present with counsel, to be heard, to be confronted with and to cross-examine the witnesses against him, and to offer evidence of his own.
McMillan, 477 U.S. at 88-89, 106 S.Ct. at 2417.
The Guidelines present similar problems to the system in Specht. The Sentencing Reform Act states “[t]he court 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....” 18 U.S.C. § 3553(b) (1988) (emphasis added). The Guideline range operates as the effective statutory maximum and minimum sentence for an offender. Judges possess no discretion in calculating that range, and very limited discretion to depart from it. Indeed, usually non-judicial officers (probation officers) make the mechanical calculations. However, that range is determined based on findings made at sentencing, and not by the jury at a trial. Thus, McMillan is inapplicable. The sentence available to a district judge is the guideline range, and not the statutory minimum or maximum sentences.
In this case under the Guidelines, should the district court find that Galloway had committed seven other interstate thefts, the district court must raise the guideline range for Galloway’s crime, and raise by more than two and one-half times the available maximum sentence from twenty-seven months to seventy-two months. This determination may be based solely on hearsay statements contained in a PSR, which may be unreliable. See United States v. Lawrence, 918 F.2d 68, 72-74 (8th Cir.1990) (Bright, J., dissenting), cert. denied, — U.S.-, 111 S.Ct. 1399, 113 L.Ed.2d 455 (1991). Only illusory differences exist between the Guidelines and the scheme condemned by the Court in Specht; both systems unconstitutionally permit increases in an offender’s statutory maximum punishment for a crime without constitutional protections. See McMillan, 477 U.S. at 87-88, 106 S.Ct. at 2417; United States v. Mobley, 956 F.2d 450, 462 (3d Cir.1992) (Mansmann, J., dissenting); Richard Hus-seini, Comment, The Federal Sentencing Guidelines: Adopting Clear and Convincing Evidence as the Burden of Proof, 57 U.Chi.L.Rev. 1387, 1401 (1990).
*442Another crucial difference between this case and McMillan is that the Pennsylvania statute only mandated consideration of facts surrounding the “circumstances of a crime” at sentencing. 477 U.S. at 92, 106 5.Ct. at 2419. The Government seeks to apply the Guidelines, which mandate that judges consider crimes that occurred at different times and places from the offense of conviction. The McMillan Court held that because the Pennsylvania law assigned “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 to that factor,” it did not violate the requirement of In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), that the elements of an offense be proven beyond a reasonable doubt, id. at 368, 90 S.Ct. at 1075. McMillan, 477 U.S. at 89, 106 S.Ct. at 2417.
We clearly recognize certain appropriate “sentencing factors.” When a defendant is convicted of assault, the court considers the defendant’s brutality and the victim’s vulnerability in calculating a sentence. When a defendant is convicted of possessing drugs, the court determines the quantity of drugs the defendant possessed. These factors focus on the particular crime which has been established by the verdict of the jury. Id. at 86, 106 S.Ct. at 2416.
In Galloway’s case, a proper consideration at sentencing would be the value of the goods stolen by him under the conviction. We do not quarrel with conduct attendant to the crime charged being used as a sentencing factor. The Government here, to the contrary, seeks to punish Galloway for his crime to which he pled guilty plus other separate alleged crimes where no conviction exists.6 Congress has recognized that separate interstate thefts are distinct crimes by mandating criminal liability for “each case” of theft. 18 U.S.C. § 659 (1988). However, under the Guidelines, Galloway will be liable for an additional seven uncharged thefts, without suffering a conviction of any of them. By punishing Galloway for those crimes, the Guidelines violate McMillan by “creating] ... separate offense[s] calling for [ ] separate penalties]_” 477 U.S. at 88, 106 S.Ct. at 2417. As Sixth Circuit Chief Judge Merritt argued: “To hold that the Sentencing Commission may or has validly established a sentencing system for relevant conduct which treats as 'irrelevant’ the difference between conviction and nonconviction flies in the face of the Constitution.” United States v. Davern, 970 F.2d at 1512 (6th Cir.1992) (en banc) (Merritt, C.J., dissenting).
The plain language of the Constitution mandates that if the Government is to incarcerate someone for a period of time because of crimes he committed, the Government must give that person notice of the crimes he is being punished for, and must try that person before a jury, which must convict the person of committing the crimes. None of the precedents cited by the majority support rejecting those fundamental protections written into the Constitution of these United States.
III.
A. Due process, preponderance of the evidence
Even if we were to ignore the precise language of the Constitution, the Guide*443lines are unconstitutional because they deprive offenders of their liberty without due process. Under the Guidelines, a judge makes findings which will determine whether a defendant such as Galloway spends two years and three months or six years in prison. The Guidelines do not specify any standard of proof the courts should use in making sentencing findings for relevant but uncharged conduct. The majority reasons that those findings need only be made by a preponderance of the evidence. Numerous judges and scholars have criticized the use of the preponderance standard at sentencing as violating due process. Restrepo, 946 F.2d at 669-78 (Norris, J., dissenting); Mobley, 956 F.2d at 462 (Mansmann, J., dissenting); David N. Adair Jr., House Built on a Weak Foundation — Sentencing Guidelines and the Preponderance Standard of Proof, 4 Fed. Sent.Rep. 292, 292 (1992); Judy Clarke, The Need for a Higher Burden of Proof for Factfinding Under the Guidelines, 4 Fed. SentRep. 300, 301 (1992); Husseini, supra, at 1401-02. Those criticisms apply with even greater force to findings at sentencing regarding uncharged conduct which is separate from the offense of conviction, as is the case here.
The majority has failed to consider the argument that a convicted defendant possesses a liberty interest in the precise range of sentence obtained by guideline methodology, which as noted rejects judicial discretion. When the sentence may be increased severalfold, as here, due process considerations suggest that something akin to clear and convincing evidence should apply-
The majority expresses some due process concerns by its apparent agreement with the Third, Seventh and Ninth Circuits “that due process may be violated if the punishment meted out following application of the sentencing factors overwhelms or is extremely disproportionate to the punishment that would otherwise be imposed.” Ante, at 426. It cites cases where the uncharged conduct nevertheless constituted part of the offense of conviction and recognized that where the “tail wags the dog,” a higher standard of proof may be required. Ante, at 426.
The issue of the degree of proof is not now before us. However, as this case is remanded by the majority, the district court may address that issue and weigh the scope of Galloway’s liberty interest, the risk of error inherent in the preponderance of the evidence standard, and the Government’s interest in a lower burden of proof. See Burns v. United States, — U.S.-, -, 111 S.Ct. 2182, 2193-94, 115 L.Ed.2d 123 (1991) (Souter, J., joined by White and O’Connor, JJ., dissenting). After performing this due process “calculus,” the district court may find that it must require the Government to prove the separate crimes alleged against Galloway by clear and convincing evidence, or a higher standard of proof.
IV. CONCLUSION
After almost a quarter century of serving as a federal appellate judge, this writer is somewhat astonished to be writing a dissent in this constitutional area of law, where the Constitution proscribes government abuses against persons with such precise language as “[n]o person shall be held to answer for a ... crime, unless on a presentment or indictment ... nor be deprived of ... liberty ... without due process of law” and “the accused shall enjoy the right to a speedy and public trial ..., and to be informed of the nature and cause of the accusation; [and shall] be confronted with the witnesses against him-” U.S. Const, amends. V, VI.
In this case, the prosecutor urged upon the district judge and urges upon us that inasmuch as Galloway pleaded guilty to one crime of interstate theft, the prosecutor should be able to show without previous notice, indictment or trial that Galloway had participated in seven other separate interstate thefts and thus, require the judge under the Guidelines to sentence Galloway for eight separate crimes rather than one.
In the face of express prohibition of the Constitution, the majority by a process of legal legerdemain converts the seven dis*444tinct crimes into “sentencing factors” and thus finesses out the crucial constitutional protections granted all persons.
The Guidelines’ Alice in Wonderland approach to legal language is aptly illustrated in the majority’s statement that “[a] theft that is but one of a chain of eight similar thefts is far different from a single theft in interstate commerce. This is ‘a circumstance of [the] offense,’ McMillan, 477 U.S. at 92, 106 S.Ct. at 2419, that bears directly upon its seriousness, and even though uncharged, may properly be considered in determining the length of that sentence within the statutory range.” Ante, at 424.
The facts show that the additional alleged thefts, if committed, amounted to separate discrete (and uncharged) events. No conspiracy or connection among the separate charges surfaced or was alleged. The PSR concedes that these are separate discrete crimes of the same type. Nevertheless, the Sentencing Commission and the majority of this court make eight into one through artificial regulations stipulating that crimes of the same type will be considered as one crime.7
In this Guidelines Wonderland, one is eight and eight is one! I do not understand this new math; this sort of sleight of hand logic ought to be rejected outright. Hopefully the Supreme Court, as the ultimate guardian of freedom, will do so.
As a final comment to the constitutional section, this writer adds a bit of personal, judicial anecdotal history. Some twenty years earlier, while sitting by special assignment as a district judge in the District of Minnesota, this writer presided over a felony case. After trial and conviction, a government law enforcement agency for sentencing purposes delivered to me, ex parte, a large envelope containing allegar tions of other crimes of the defendant supported by raw investigative material, reports of second-hand conversations with informants eager to please police, and miscellaneous matters extraneous to the conviction or trial. I rejected these papers for two reasons: they were brought to me ex parte and the allegations were both unfair and unreliable.
The Sentencing Commission has elevated this sort of procedure to a lawful level, only changing the method of transmission: delivery to the probation officer for inclusion in the PSR and furnishing that report to the defendant for objection or comment, rather than direct delivery to the sentencing judge. To the dissenters, such procedures in the circumstances of this case lack constitutional legitimacy.
The precedent established here by the majority portends great erosion to the fragile concept of liberty. One might envision a Congress as part of “a war on crime” and its preoccupation with heavy prison sentences as a quick solution thereto, imposing maximum prison terms of twenty, thirty or forty years for almost any felony, and leaving it to the Sentencing Commission by guideline to gradate sentences below the statutory maximum. Thus, applying the procedures used in this case, a person picked up and charged with a relatively innocuous crime could face years and years of imprisonment on allegations and slight proof of other miscellaneous misconduct without any constitutional protections. This would follow from a court ruling that the miscellaneous misconduct amounts to “sentencing factors,” and not criminal conduct.
The publication of the majority opinion represents a sad day in the jurisprudence of this court. It makes dead many of the magnificent benefits of liberty contained in the fifth and sixth amendments to the Constitution. That liberty which the language of the Constitution has granted to all persons has now, in part, been taken away.
Accordingly, we dissent.
. When people from other developed countries are informed that our country uses a modified "real offense” system, they cannot believe it. Michael Tonry, Salvaging the Sentencing Guidelines in Seven Easy Steps, 4 Fed.Sent.Rep. 355, 356 (1992) [hereinafter Tonry, Salvaging ]. It is no accident that none of the states with sentencing commissions (Minnesota, Oregon, Pennsylvania and Washington) have chosen to penalize defendants for uncharged or unconvicted conduct. Id. at 357; see abo Dale G. Parent, Structuring Criminal Sentences: The Evolution of the Minnesota Sentencing Guidelines 63 ("The [Minnesota] Commission believed that it would be fundamentally unfair to base a presumptive sentence on an offense for which the defendant had not been charged or convicted.”).
. The seven offenses seem to fall under the acts or omissions that were part of the same course of conduct.
. In the pre-Guidelines era, rehabilitation was a major goal of sentencing. Judges considered a wide range of offender characteristics, such as age and vocational skills in determining a sentence. Williams, 337 U.S. at 248-49, 69 S.Ct. at 1083-84. The Guidelines have largely ignored rehabilitation as a goal of imprisonment, notwithstanding Congress’ instructions to judges in 18 U.S.C. § 3553(a). ("The court, in determining the particular sentence to be imposed, shall consider ... the need for the sentence imposed ... to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner ... ”). See U.S.S.G. § 5H. Moreover, the sentences in the old system were indeterminate and could be revised by the parole commission. Williams, 337 U.S. at 248, 69 S.Ct. at 1083-84. Congress has abolished parole in favor of real-time sentencing. 18 U.S.C. § 3624(b) (1988). See generally Gerald W. Hea-ney, The Reality of Guideline Sentencing: No End to Disparity, 28 Am.Crim.L.Rev. 161, 215-16 (discussing differences between indeterminate and Guidelines system).
. This writer and others have argued in the past that the Sentencing Reform Act vests sentencing judges with considerable discretion in determin*440ing an offender’s sentencing range, and that the Sentencing Commission violated the Act by drafting Guidelines which deprive judges of that discretion. See United States v. Edgar, 971 F.2d 89, 96-99 (8th Cir.1992) (Heaney, J., concurring in part and dissenting in part); United States v. Quarles, 955 F.2d 498, 503-06 (8th Cir.) (Bright, J., concurring in part and dissenting in part), cert. denied, -U.S. -, 112 S.Ct. 2285, 119 L.Ed.2d 209 (1992); United States v. Davern, 937 F.2d 1041 (6th Cir.1991), vacated and rev'd en banc, United States v. Davern, 970 F.2d 1490, 1492-93 (6th Cir.1992) (en banc). Recently this court expressly approved of the Sentencing Commission’s position. United States v. Johnston, 973 F.2d 611 (8th Cir.1992). It did so essentially ipse dixit, paradoxically citing no authority except concurring and dissenting opinions of this judge and Judge Heaney. Id. (citing United States v. Edgar, 971 F.2d 89, 96-99 (8th Cir.1992) (Heaney, J., concurring and dissenting); United States v. Stockton, 968 F.2d 715, 721-22 (8th Cir.1992) (Bright, J., concurring); United States v. England, 966 F.2d 403, (8th Cir.1992) (Bright, J., concurring)). Because the Guidelines, as they are written and are being enforced, operate as mandatory sentences, they violate the dictates of McMillan, as explained infra.
. The Sentencing Commission's policy statements permit judges under special circumstances to consider an offender's personal characteristics. The policy statements say that personal characteristics are not ordinarily relevant, not that they are never relevant. U.S.S.G. § 5H. Unfortunately, the Courts of Appeals’ frequently rigid application of the policy statements has precluded any meaningful consideration of an offender’s personal characteristics.
. The majority uses as authority for its holding a passage from McMillan where the Court, quoting again from Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977), rejected the "claim that whenever a State links the 'severity of punishment’ to ‘the presence or absence of an identified fact’ the State must prove that fact beyond a reasonable doubt." McMillan, 477 U.S. at 84, 106 S.Ct. at 2415 (citing Patterson, 432 U.S. at 214, 97 S.Ct. at 2329). Keep in mind that the Court in Patterson rejected a claim by a defendant that a State had to prove beyond a reasonable doubt the absence of facts establishing an affirmative defense to a murder. The Court held that Winship required that a State prove the elements of an offense by guilt beyond a reasonable doubt, but did not require a State to disprove affirmative defenses to a crime. Patterson, 432 U.S. at 211, 97 S.Ct. at 2327. Nothing in either McMillan or Patterson relieves states and the Government of the burden of proving a defendant guilty beyond a reasonable doubt of committing separate, discrete acts of criminal conduct before they may punish a defendant for committing that conduct.
. If we accept the majority’s rationale, a government prosecutor could charge any crime and add others of any type. Even the Sentencing Commission does not go that far. See U.S.S.G. §§ IB 1.3(a)(2), 3D 1.2(d).
The transmutation of eight offenses into one is demonstrated in the majority’s reliance on McMillan. In that case, use of the gun was part of the crime, and "visible possession is a simple, straightforward issue susceptible of objective proof." McMillan, 477 U.S. at 84, 106 S.Ct. at 2415. The language about the "circumstances of an offense” does not support the majority, but, read in context, can be understood to imply that conduct not part of the crime charged requires a separate notice, trial and conviction.