dissenting.
The Sentencing Commission and its chairman refer to the “relevant conduct” provisions as “The Cornerstone of the Federal Sentencing Guidelines.”1 In these three cases we see the “relevant conduct” system run amok. Unreliable double, triple and quadruple hearsay information provided by the prosecution about other un-convicted crimes is used to increase substantially . the defendants’ sentences over the original level of punishment provided in the Sentencing Guidelines for the crimes for which the defendants have been convicted. The new unconvicted hearsay crimes are made up by the prosecution and the probation office without notice after the guilty plea, and the district judge must *1520multiply the punishment on the basis of these new unconvicted crimes.
In Silverman, the district court believed itself compelled under the “relevant conduct” system to increase the defendant’s sentence by five years over the convicted offense level. This was done on the basis of multiple hearsay from unnamed sources, furnished by the- prosecution and a DEA agent, concerning additional unconvicted crimes. The Catón and Woodard cases are similar. The prosecution asked for and received from the probation officer large “relevant conduct” increases in the sentence on the basis of multiple hearsay from criminal confederates, usually unnamed, who have furnished information to the prosecution about other unconvicted crimes. In Silverman, for example, an unnamed informant tells a police officer, who tells the police chief, who tells a DEA agent, who tells a probation officer, who tells the court, that Silverman was a major dealer in drugs the year before the quarter-ounce transaction for which he is convicted. The amount of drugs in prior unconvicted transactions is then estimated by the probation officer and Silverman’s sentence is automatically increased more than five years based on the quintuple hearsay of witnesses who no one suggests were unavailable. Our Court justifies this kind of sentence by simply holding the Confrontation Clause inapplicable.2
This Court’s holding — i.e. constitutionally reliable evidence of the unconvicted crime is unnecessary — is bad enough. What makes the decision even worse is that the Court need not have reached the constitutional issue at all had it simply interpreted the Guidelines in accordance with Congress’ intent. Instead, this Court treats the “relevant conduct” provisions, as sentencing “imperatives” to be followed rigidly like statutes. See United States v. Davern, 970 F.2d 1490 (6th Cir.1992) (en banc). In so construing the relevant conduct provisions, our Court violates, in my opinion, both the unambiguous language of key sections of the Sentencing Reform Act of 1984, 28 U.S.C. § 994(1), and 18 U.S.C. § 3553(a), as well as the Due Process, Notice and Confrontation Clauses of the Constitution. The Court’s unwillingness to confine the Sentencing Commission and its Guidelines within applicable statutory and constitutional limitations is unfortunate be*1521cause of the grave injustices it allows and because it severely undermines the role of the federal court in protecting the rights of the accused.
I will discuss the statutory issues first, and then proceed to the constitutional questions raised by this trilogy of cases.
I. Relevant Conduct System Violates 28 U.S.C. § 994(1)
We have seen how our Court has chosen to treat the numerous relevant conduct upward adjustment possibilities contained throughout the Guidelines as “imperatives” or mandates for the sentencing court to apply automatically without deviation, based largely on the information concerning uncharged and unconvicted conduct provided by the prosecutor. No distinction in sentencing may be drawn, according to the Court, between convicted conduct and unconvicted conduct and between completed crimes and unsuccessful ■ attempts.
The first point I want to make is that this position clearly contravenes the Guidelines’ enabling legislation. The Sentencing Reform Act of 1984, the Act which authorized the Guidelines, does not expressly mention or authorize such a “relevant conduct” sentencing system.3 In 28 U.S.C. § 994(1) (1988), Congress does provide for a system that will deal with multiple offenses: § 994(1) allows “incremental penalties” for multiple offensés, but limits such penalties to the situation in which a defendant is “convicted of multiple offenses committed in the same course of conduct.” To this extent Congress provided for a conviction offense sentencing system just as the states have created in similar situations.4 The statute does not authorize incremental penalties when a defendant is convicted only of a single offense during a time period in which he may also have committed other offenses if he is not charged and convicted for those offenses. Seetion 994(1) is plain and unambiguous. It authorizes the Sentencing Commission only to impose:
an incremental penalty for each offense in a case in which the defendant is convicted of—
(A) multiple offenses committed in the same course of conduct that result in the exercise of ancillary jurisdiction over one or more of the offenses; and
(B) multiple offenses committed at different times.
28 U.S.C. § 994(1) (1988) (emphasis added). No language of the Sentencing Reform Act of 1984 allows.what the Sentencing Commission and now our Court have done: imposing incremental penalties for uncon-victed offenses either “in the same course of conduct” or “at different times.” The Act repeatedly refers to a “defendant who has been found guilty of an offense.” See, e.g., 18 U.S.C. §§ 3552(a), (b) & (c), 3552(b), 3554, 3555, 3556, 3561, 3571, 3581. It does not refer to unconvicted relevant conduct.
The Guidelines should not be read to treat convicted and uneonvicted conduct alike because such a reading exceeds the authority granted in the enabling legislation to either the Sentencing Commission or a court. It contravenes the plain language of the enabling legislation. See United States v. James, 478 U.S. 597, 604, 106 S.Ct. 3116, 3120, 92 L.Ed.2d 483 (1986) (starting point for statutory interpretation is the language of the statute itself). See also Ardestani v. INS, — U.S. -, -, 112 S.Ct. 515, 520, 116 L.Ed.2d 496 (1991) (a “strong presumption” exists that the plain language, using the ordinary meaning of the words, clearly , expresses congressional intent). Evidently, the Sentencing Commission does not feel restrained by the express language of § 994(1). It has seized its authority to impose incremental penalties in circumstances involving multiple of*1522fenses without heeding the language restricting the imposition of such penalties to conduct related to the offense of conviction only.5
The Commission takes the superficially appealing position that it is proper to impose incremental penalties for unconvicted conduct because it claims that courts have always done so. Supporters point out that sentencing courts traditionally had unbridled discretion with respect to what information about the defendant would be considered when imposing a sentence. That reasoning is flawed, however, because it does not acknowledge the prosecutor’s control of the outcome in the relevant conduct system or the fundamental distinction between allowing an unbiased court to consider unlimited factors and compelling the court to impose a sentence that reflects information selectively disclosed by the prosecutor. Vesting control over sentencing in an unbiased, objective, neutral federal judge is completely different from vesting such discretion in the prosecutor, a party to the case. The difference should be obvious, but apparently it is not obvious to the Sentencing Commission.
I can find no legislative history contrary to the language of § 994(1) and supporting the proposition that Congress intended to mandate punishment for unindicted or un-convicted offenses as well as convicted offenses. In the absence of clear evidence that Congress intended to augment the penalty a defendant receives for a charged and convicted offense by additional penalties for uncharged conduct, the venerable rule of statutory construction, expressio unius est exclusio alterius — i.e., “the expression of one [thing] is the exclusion of the other” — counsels against so broad an interpretation. See generally National Railroad Passenger Corp. v. National Association of Railroad Passengers, 414 U.S. 453, 458, 94 S.Ct. 690, 693, 38 L.Ed.2d 646 (1974); Neuberger v. Commissioner, 311 U.S. 83, 88, 61 S.Ct. 97, 101, 85 L.Ed. 58 (1940); Ford v. United States, 273 U.S. 593, 611-12, 47 S.Ct. 531, 537, 71 L.Ed. 793 (1927). Congress’s limitation of the Sentencing Commission’s rule-making authority to convicted offenses is explicit. The expression of this Congressional limitation restricts “incremental” sentencing for offenses to “convicted” offenses. Cf. Norman Singer, 2A Sutherland Statutory Construction § 47.23 (5th ed. 1991). The majority’s expansion, of the types of conduct permissible for Guidelines sentencing violates this “ancient maxim” of statutory construction, Railroad Passenger Corp., 414 U.S. at 458, 94 S.Ct. at 693, and neglects the plain meaning to be assigned to Congress’s words so directly expressed in § 994(1): only “convicted” multiple offenses will énter into incremental punishment deliberations.
In another, almost identical sentencing context, the Supreme Court has held that Congress expressly limited the sentencing calculus only to that conduct arising from the offense of conviction. It held that restitution to the victim may only be required under 18 U.S.C. § 3580(a) for the crime of conviction, not for unconvicted relevant conduct. The Supreme Court said that if Congress had intended to allow consideration of unconvicted, “relevant conduct” attributable to a defendant, “Congress would likely have chosen language other than ‘the offense,’ which refers without question to the offense of conviction. ” Hughey v. United States, 495 U.S. 411, 418, 110 S.Ct. 1979, 1984, 109 L.Ed.2d 408 (1990) (emphasis added). Thus the Court concluded, without dissent, that for losses arising from a crime, the offense of conviction establishes the “outer limits” of a restitution order. The congressional intent behind § 994(1) to limit incremental penalties to convicted conduct is plainly mirrored in the Supreme Court’s reasoning in Hughey. The same interpretation should be given to the same “convicted offense” language of both the restitution and incremental punishment provisions of the enabling act.
*1523It is bad judicial form simply to refuse to follow the policy expressly stated by Congress, in favor of a contrary policy perpetuated by an administrative agency, especially when that congressional policy is designed to maintain a degree of judicial control over the sentencing process. I do not understand why my sisters and brothers, usually the voices of sweet reason and deference to the majoritarian branch of government, persist in following the Sentencing Commission and the Department of Justice in their defiance of the policy stated expressly in the statute we are interpreting. I understand as a matter of public choice theory of incentives why the Sentencing Commission and the Department of Justice might believe it is in their interest to control the sentencing process. See James M. Buchanan & Gordon Tullock, The Calculus of Consent: Logical Foundation of Constitutional Democracy (1965). It is certainly in their bureaucratic interest to do so. Congressional appropriations and governmental power depend upon it. But it is not in anyone else’s interest to adopt a policy contrary to the one expressed by Congress. It is certainly not in the interest of the judiciary as the “least dangerous branch,” and not in the interest of individuals in society who may be wrongly accused by prosecutors whose power has now been so enlarged through our default. The prosecutors now effectively control both the charging system and the sentencing system. And to an ever-increasing extent, the two are one and the same.
What treatment of the “incremental penalty” language of § 994(1) does the Sentencing Commission give in the Guidelines Commentary? It simply never mentions it anywhere. It does so in favor of a rigid system of unconvicted “relevant conduct,” which allows greatly enhanced sentences based on constitutionally unreliable evidence.
II. Relevant Conduct System Violates 18 U.S.C. § 3553(a)6
The second point is that this rigid “relevant conduct” system also ignores § 3553(a) of the enabling act. This section provides in mandatory language in the first sentence that the District Court should consider the facts and fix a sentence “not greater than necessary to comply” with a group of “purposes” or factors: (a) a “just *1524punishment” which will “reflect the seriousness of the offense,” (b) the need for “deterrence of criminal conduct,” (c) the need to protect the public from “further crimes of the defendant,” (d) the need to rehabilitate the defendant through “educational ... and other correctional treatment,” and (e) the availability of various alternative forms of sentences. This duty to consider the facts according to these steps and to impose a “just punishment” which is “not .greater than necessary” is the first duty required of the sentencing court by the statute.
The enabling act’s most prominently featured element of sentencing in individual cases is the “purposes of sentencing” provision in this section. After enumerating these purposes in 18 U.S.C. § 3553(a), Congress referred to the purposes 17 times in the course of its instructions to the Commission and the courts.7 Kenneth Fein-berg, who as Chief Counsel of the Senate Judiciary Committee was a primary author of the legislation creating the Commission, recently said:
A strong argument can be made that, by ignoring the Congressional mandate to consider purposes, the Commission has failed to consider variables very relevant to the individually tailored sentence. In the absence of more explicit language from the Commission detailing the consideration given criminal justice purposes, courts would appear to be free to cite the abdication of Commission responsibility in this area.8
The Sentencing Commission and our Court simply ignore the language of this “purposes” section in approving a . rigid “relevant conduct” system which results in large increases in sentences automatically administered for unconvicted conduct.
III. Relevant Conduct System Violates Confrontation Clause
I agree with my colleague, Chief Judge Richard Arnold of the Eighth Circuit, in.his recent dissenting opinion in United States v. Wise, 976 F.2d 393 (8th Cir.1992), in which he argues that the Confrontation Clause must now be applied to the sentencing process. By ignoring § 994(e) and § 3553(a) the Sentencing Commission, and now our Court, have created a “relevant conduct” sentencing system of “mechanical” rules to be applied without deviation on the basis of constitutionally unreliable evidence. By developing a sentencing code of “mechanical” rules, the Sentencing Commission under the Sentencing Reform Act of 1984 “revolutionized the manner in which the district courts sentence persons convicted of federal crimes.” Burns v. United States, — U.S. -, -, 111 S.Ct. 2182, 2184, 115 L.Ed.2d 123 (1991). The old informal system of indeterminate sentencing was not adversary in nature. Independently of the lawyers in the case and the adversary system, the judge — using probation officers who communicated with him in private and ex parte — did his own investigation of the offender’s character, family circumstances and criminal history, as well as the harm to the victim. There were no rules allocating burdens of proof between the parties concerning the existence of sentencing facts, nor were there rules concerning disclosure of the judge’s sources of information. Most important of all, the old system did not require the judge to find facts or to base his sentence on the existence' or nonexistence of a particular fact or group of facts. The old nonadversary process did not require factfinding because district judges had an absolute and unreviewable discretion, so long as the sentence imposed did not exceed the statutory maximum for the offense. Sentencing was an intuitive process.
All that has changed.9 Under Guidelines Ch. 5, Pt. H, age, education, employment *1525and family and community circumstances may no longer be considered. These facts which usually help the defendant are irrelevant. Mainly it is now just the facts concerning the criminal activity — facts furnished by the prosecution in hearsay form — that are now relevant. The punishment must suit the crime, not the individual defendant. Only uniformity of sentences is important. Rehabilitation is out. Long sentences based on retribution are in.
Although the use of probation officers continues, the new system completely changes the discretionary, nonadversary, nonfactual nature of the sentencing process by introducing the adversary sentencing hearing, the need for precise and accurate findings of disputed facts about other criminal conduct and absolute rules to be applied without deviation requiring the district court to increase dramatically the sentence based on the unconvicted conduct. Both § 6A1.3 of the guidelines, entitled “Resolution of Disputed Factors (Policy Statement)” and Federal Rule of Criminal Procedure 32(c)(3)(D) require specific findings of fact.10
As these cases demonstrate, the existence or nonexistence of a particular fact— for example, the amount of money involved or drugs possessed or, as in the three cases under review here, the existence of additional wrongful conduct — may automatically double or even in some cases multiply tenfold the particular sentence that judges are required to impose under the Guidelines code. The entire purpose of the sentencing code is to eliminate disparity in sentencing by isolating and elevating the importance of particular facts in the sentencing process. A sentencing court must find facts at each stage of the nine sentencing steps prescribed by the Sentencing Commission in § 1B1.1. For each crime, both convicted and unconvicted, the code selects certain operative facts concerning criminal activity as important and excludes other ameliorative facts as irrelevant. The operative facts selected automatically produce an “offense level” with a narrow sentencing range for the judge to follow. The sentence imposed is reviewable on appeal as a matter of right.11
The dramatic change in the importance of factfinding concerning unconvicted crimes in the sentencing process, and the elimination of rehabilitation and intuitive factors from consideration, should now require at least that the reliability of the factfinding process be tested under the Confrontation Clause.12 Heretofore the Confrontation Clause has not been thought to apply to the sentencing phase of the criminal trial because of the informal, non-adversary nature of the process and the absolute, unreviewable discretion of the district judge, a discretion unrelated to the finding of particular facts.
The case of Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949), is no longer applicable. In Williams, a state judge sentenced the defendant to death for murder, and the question was whether the Due Process Clause— *1526not the Confrontation Clause13 — allowed the trial judge to use general hearsay information in the sentencing process. The Williams opinion makes clear that the decision is intended to allow the “modern” theories of “indeterminate,” “individualized,” “discretionary” intuitive sentencing designed to “rehabilitate” the offender to be put into practice without constitutional limitations that could undermine the experiment. The Court contrasted the new, more “humane” system of rehabilitation with the previous harsh system of determinant sentencing based on retribution and deterrence. The “new” experimental system reviewed in Williams in 1949 is now the “old” system — characterized, it is said, by unconscionable “disparity.” It is the very system rejected by the Sentencing Commission in the Guidelines. The system reviewed in Williams was a nonadversary, indeterminate, individualized system vesting complete discretion in the judge without the need to find facts and without the requirement that sentences be multiplied on the basis- of unconvicted conduct. The system put into place by the new sentencing code is different in all these respects from the former system it replaced.
We should not be misled into believing that the Williams opinion applies to all sentencing systems, for Williams is not the only law on the subject from the Supreme Court. The Court has recognized that when the sentencing system changes, the nature of the applicable constitutional limitations may also change. In Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967), the Court required the application of the Confrontation Clause to the sentencing system at hand. There the Colorado sentencing system allowed the sentence to be increased to life from a maximum of 10 years upon a finding by the sentencing judge that the offender, based on past conduct, “if left at large, constitutes 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. The Court said the Colorado system of enhanced sentencing contemplated an adversary proceeding and “a new finding of fact that was not an ingredient of the offense charged.” Id. at 608, 87 S.Ct. at 1211-12. Under such circumstances the alleged offender must “have an opportunity to be heard, be confronted with the witness against him, have the right to cross-examine, and to offer evidence of his own.” Id. at 610, 87 S.Ct. at 1212.
The Specht case expressly distinguishes the sentencing system reviewed in Williams on the ground that the Colorado scheme requires factfinding in an adversary setting rather than the exercise of pure unreviewable discretion without the necessity of finding facts. The Supreme Court has continued to cite and respect the distinction based on factfinding drawn in Specht. See McMillan v. Pennsylvania, 477 U.S. 79, 88-91, 106 S.Ct. 2411, 2417-19, 91 L.Ed.2d 67 (1986).
It is especially important that the cross-examination requirements of the Confrontation Clause be observed when the evidence in question, as in the present cases, consists primarily of double and triple hearsay from alleged accomplices, confederates and co-conspirators. This requirement becomes even more important when, as in these cases, the sentence is based in part on multiple hearsay offered by the prosecution from unnamed confederates.
A long line of Supreme Court cases interpreting the Confrontation Clause has created a strong presumption against the trustworthiness of co-conspirators’ statements that are made after a conspiracy has terminated in arrest. In the most recent case on point, Lee v. Illinois, the Court held inadmissible a co-conspirator’s confession. It said that the “truthfinding function of the Confrontation Clause is uniquely threatened when an accomplice’s confession is sought to be introduced against a criminal defendant without the benefit of cross-examination.” 476 U.S. 530, 541, 106 S.Ct. *15272056, 2062, 90 L.Ed.2d 514 (1986). Due to a co-conspirator’s “strong motivation to implicate the defendant and to exonerate himself,” a co-conspirator’s statements about the defendant’s involvement in the crime should be viewed with “special suspicion.” Id. (quoting from Bruton v. United States, 391 U.S. 123, 141, 88 S.Ct. 1620, 1631, 20 L.Ed.2d 476 (1968) (White, J., dissenting)) (citations omitted). This suspicion stems from the “reality of the criminal process, namely, that once partners in a crime recognize that the ‘jig is up,’ they tend to lose any identity of interest and immediately become antagonists, rather than accomplices.” 476 U.S. at 544-45,106 S.Ct. at 2064.
In the three cases before the court, confederates provided hearsay evidence of other crimes. In most “relevant conduct” cases across the country, double, triple and even quintuple accomplice hearsay furnished informally to the probation officer by the prosecution after a guilty plea is used to multiply the sentence. It is often the only evidence used to increase the sentence. That system of “relevant conduct” based on hearsay is now standard operating procedure in the federal courts across the country.14 Silverman is a good example. Unnamed informants tell a police officer, who tells the police chief, who tells a DEA agent, who tells a probation officer, who tells the court, that Silverman was a major dealer in drugs the year before the quarter-ounce transaction for which he is convicted. The amount of drugs in prior unconvicted transactions is then estimated by the probation officer and Silverman’s sentence is automatically increased more than five years based on the quintuple hearsay of witnesses who no one suggests were unavailable. Our court justifies this result without confronting the arguments to the contrary or recognizing the implications of what it is doing. The court avoids confrontation on two fronts — its duty to confront the reasoning process that leads to the conclusion that the new sentencing grid has so changed the rules that the defendant must now be allowed the protection of the right of confrontation.
IV. Relevant Conduct System Violates Due Process
The “relevant conduct” provisions of the new sentencing code are so fundamentally inequitable and contrary to principles of evenhanded justice that they violate due process of law. The relevant conduct provisions are now so weighted in favor of the prosecution that defendants must have their sentences increased for charged conduct for which the jury has returned a verdict of “not guilty” if the district judge believes the conduct occurred. The relevant conduct system now makes acquittal by the jury on some counts irrelevant to the sentence imposed for the. convicted offense. United States v. Martin, 972 F.2d 349 (6th Cir.1992) (holding that a jury verdict of acquittal is irrelevant because sentence must be increased for “relevant conduct” if court believes conduct occurred). Accord, United States v. Moreno, 933 F.2d 362, 374 (6th Cir.1991).
The due process violation occurs in the instant case because, at the time .the plea must be entered, the defendant receives no notice of the additional crimes for which the court will enhance the defendant’s sentence. Only after the plea is already entered will a probation officer compile the convicted and dnconvicted crimes for which sentence will be imposed depending on the uncharged, “relevant conduct” information that the prosecutor chooses to disclose to the court through the probation office. Such, a system of sentencing places almost exclusive control over the sentence in the prosecutor because the judge now is compelled to base the sentence on uncharged conduct largely provided by the prosecutor. This system effectively removes the judge *1528from any meaningful role in the sentencing process and substitutes the prosecutor for the judge. Such a system — which substitutes the prosecutor for the judge after a plea of guilty is entered, and which gives no explicit notice of the crimes for which the defendant will be sentenced before the plea — violates due process. See United States v. Kikumura, 918 F.2d 1084, 1119 (3rd Cir.1990) (Rosenn, J., concurring) (reasoning that a defendant’s due process rights may be violated by sentencing system that “replaced judicial discretion over sentencing with prosecutorial discretion”); United States v. Gutierrez, 908 F.2d 349, 354-55 (8th Cir.1990) (Heaney, J., dissenting) (reasoning that the Guidelines’ limitations on a court’s traditional sentencing authority “are fundamentally unfair and a violation of due process”). See also United States v. Roberts, 726 F.Supp. 1359, 1365-68 (D.D.C.1989), rev’d sub nom. United States v. Doe, 934 F.2d 353 (D.C.Cir.1991) (holding that the Guidelines “effect substantial violations of due process” on defendants and are thus unconstitutional due to exercise of “key sentencing responsibility ... not by a judge but by the prosecuting attorney”), and United States v. Brittman, 687 F.Supp. 1329, 1355 (E.D.Ark.1988), aff'd in part, 872 F.2d 827 (8th Cir.1989) (holding that the sphere of sentencing discretion is “properly judicial in nature” in order to comport with due process requirements).
Notice to the defendant and imposition of sentence by an unbiased judge rather than control by a party litigant are crucial procedural elements of due process. These indispensable elements are now absent from the sentencing system under the Court’s holding that the relevant conduct provisions of the Guidelines should be interpreted as treating convicted and unconvicted conduct the same.
A. Control of Sentence by Prosecutor
The Supreme Court held in Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927), that the sentencing process may not be placed under the control of a party in interest to the litigation. In Tumey Ohio law placed town mayors in control of criminal prosecution for possession of liquor in violation of prohibition laws. Mayors and their cities were given a personal financial stake in the outcome of these particular cases. The Court held in Tumey that due process forbids a party in interest from being substituted for the judge in imposing fines and sentences, so that it violates fundamental principles to allow a party in interest to control the sentencing process. 273 U.S. at 531, 47 S.Ct. at 444. See also Connally v. Georgia, 429 U.S. 245, 97 S.Ct. 546, 50 L.Ed.2d 444 (1977) (holding defendants’ due process rights to have been violated by a statutory scheme that paid justices of the peace for each search warrant issued); In re Murchison, 349 U.S. 133, 139, 75 S.Ct. 623, 627, 99 L.Ed. 942 (1955) (holding due process violated by allowing judge, who had acted as one-person grand jury, to pass sentence on charge stemming from the initial grand jury hearing); and Note, Procedural Due Process at Judicial Sentencing for Felony, 81 Harv.L.Rev. 821, 837 (1968). Impartial justice requires no less than visible control of the sentencing process by an impartial participant — heretofore considered to be the role of the judiciary — to comport with traditional notions of due process. The relevant conduct provisions are a disaster for Guidelines that purport to reduce disparity because these provisions impose a disparate sentencing system based on prosecutorial discretion but conceal the prosecutor’s role from the public.
B. Notice
A sentencing system that institutes punishment for uncharged, unconvicted crimes based on uncross-examined hearsay also violates the notice principle of due process. The prosecutor makes up the crimes for which a sentence will be imposed after the defendant has been required to plead guilty or not guilty, as in the cases here. It is impossible for the defendant to know at this critical stage in the proceeding what unconvicted crimes he may be sentenced for. The Criminal Rules Committee of the Judicial Conference, in drafting its 1989 amendment to Rule 11 of the Federal Rules *1529of Criminal Procedure, recognized the problem that the Guidelines created in this respect. The Committee noted that under the Guideline system, “[t]he advice that the court is required to give cannot guarantee that a defendant who pleads guilty will not later claim a lack of understanding as to the importance of guidelines at the time of the plea. No advice is likely to serve as a complete protection against post-plea claims of ignorance or confusion.” Fed. R.Crim.P. 11 advisory committee’s note (1989 amendment). The Committee made this statement because it is impossible for the court to give the defendant notice of the unconvicted crimes for which he will be sentenced under the Guideline system conceived by the Sentencing Commission and approved by our Court. According to the procedure now used, a defendant will not be accurately informed of the specific un-eonvicted crimes charged against him until after the probation officer’s presentence report issues. The indictment and the arraignment merely open the game of defining the crime. See, e.g., United States v. Harrington, 947 F.2d 956, 964 (D.C.Cir.1991) (Edwards, J., concurring) (“Assistant U.S. Attorneys ... have been heard to say, with open candor, that there are many ‘games to be played’,” in indicting defendants and in plea bargaining). The game will later be played out when the prosecution turns over to the probation officer its handpicked list of the uncharged crimes for which it wants the defendant to be sentenced. The prosecutor’s office will draw up the charges for which the defendant will actually be sentenced after indictment, plea, and conviction, and then turn this list over to the court through the probation office. See generally Report of the Federal Courts Study Committee at 138 (Apr. 2, 1990) (commenting that this system distorts the role of probation officers and recommending greater examination of the effects of the Guidelines sentencing upon the probation system); Note, Steve Y. Koh, Reestablishing the Federal Judge’s Role in Sentencing, 101 Yale L.J. 1109, 1120-21 (1992) (addressing probation officer’s inability to curb prosecutorial gamesmanship in preparing presentencing reports); Hea-ney, Guidelines Sentencing, at 172-75 (noting that “the most striking features of the process are the probation officer’s reliance on the government’s files for his findings of fact, and, in turn, the court’s reliance on the [presentence report’s] conclusions and guidelines recommendation,” despite the probation officer’s inability to attend the trial or to have access to the trial transcript); and Note, 81 Harv.L.Rev. at 837 (recognizing that sentencing information needed by probation officers is frequently under control of prosecutors, “who cannot be expected to be disinterested”).
Allowing a defendant to be sentenced in this way for convicted and unconvicted crimes violates the Sixth Amendment provision requiring that the accused be “informed of the nature and cause of the accusation” at the critical stages of the case. Sentencing is just such a critical stage. Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967). The requirement that defendants receive fair notice as a matter of due process under the Fifth Amendment and this comparable provision of the Sixth Amendment is fundamental. In Cole v. Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 517, 92 L.Ed. 644 (1948), a unanimous Court observed, “No principle of due process is more clearly established than the notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding, in all courts, state or federal,”
The Supreme Court in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), applied these same principles to a state sentencing system. It held the Iowa system of parole revocation invalid under the Due Process Clause. In Mor-rissey the accused was reincarcerated by the state parole board for violating conditions of parole. The parole officer controlled this outcome because the process deferred in large measure to his recommen-. dation and allegations of misconduct. The accused was not allowed to cross-examine the witnesses and was not given notice of the allegations and evidence against him at *1530the critical stage of the proceeding that led to his reincarceration: In reviewing the fairness of such sentencing systems under the Due Process Clause, the Supreme Court in Morrissey applied a flexible standard:
It has been said so often by this Court and others as to not require citation of authority that due process is flexible and calls for such procedural protections as the particular situation demands. “[Consideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as the private interest that has been affected by government action.”
408 U.S. at 481, 92 S.Ct. at 2600 (citations omitted). Applying this standard, the Court held that the parole revocation system in question violated due process by allowing the parole officer to control the process, although the official action was taken in the name of the state parole board, by failing to give adequate notice of the nature of the risks to the accused, and by refusing to allow the parolee to cross-examine the witnesses against him. The “relevant conduct” system under review here suffers the same constitutional defect.
V. Conclusion
Under the present formulation of the “relevant conduct” system, this Court, the Department of Justice, and the Sentencing Commission have eliminated the normal constitutional protections afforded an accused. The separation-of-powers • principle that an Article III court should control the criminal sentencing proceeding as a constitutional “case or controversy” is avoided because the court is bound to sentence the defendant on the basis of the information forwarded by the prosecutor after the plea or verdict. The sentencing grid takes over and mechanically controls the court’s decision. The judge is only the nominal sen-tencer. Control of the sentence is thereby vested in the person who produces the new information about unconvicted crimes to be plugged into the grid, namely, the prosecutor. The court may not alter the sentence based on pleas of the defendant or even pleas of the victim concerning the need for deterrence and retribution and the probability of rehabilitation. As formulated, the relevant conduct system does not allow the trial judge to consider the first principle of sentencing that Congress established in § 3553(a), that the judge may not impose on the defendant a sentence “greater than necessary” to deter or rehabilitate. Such considerations are eliminated by the sentencing grid. The Fifth Amendment constitutional requirement to give notice to the accused of the crimes charged by “presentment or indictment” is eliminated, as is the Sixth Amendment’s requirement that the accused be “informed of the nature and cause of the accusation” and, as here, “shall enjoy the right ..'. to be confronted with the witnesses against him.” The prosecutor submits the new crimes information in hearsay form after the plea or verdict. The constitutional and statutory rules requiring reliable evidence are eliminated, and hearsay three and four levels deep, as in these cases, is routinely used as evidence of the new crimes. See Heaney, Guidelines Sentencing, at 210 & 223-24. The court routinely instructs accused persons to appear before the probation officer, sometimes with the prosecutor or his delegate present, for the purpose of incriminating themselves on the new charges. See, e.g., United States v. Miller, 910 F.2d 1321, 1323 & 1329-33 (6th Cir.1990) (Merritt, C.J., dissenting) (trial court seriously misled the defendant into making statements that added more than three years to his sentence).
Thus, the system of relevant conduct as formulated tends to take over the entire sentencing process, displacing the original base offense level for the crime charged and convicted and replacing it with much greater offense levels, for the new uncon-victed crimes. This usually has the effect of increasing the sentencing several fold by placing the system under the control of the prosecutor, by eliminating the judgment of the trial judge, and thereby eliminating the need for the prosecutor to observe the numerous constitutional safeguards which otherwise attach to the criminal process. *1531The result is a constitutionally infirm procedure that is effectively shielded from judicial review.
APPENDIX
EXTRACT OF PRESENTENCE REPORT, UNITED STATES v. SILVERMAN,
No. CR-2-88-028 (S.D. Ohio, July 12, 1988)
Part A. THE OFFENSE
The Offense Conduct
4. Ira Silverman was the subject of two separate investigations conducted by the Drug Enforcement Administration (Columbus Branch)/Columbus Police Department and the Ohio Bureau of Criminal Identification-Investigative Division. Information obtained from these law enforcement agencies and the DEA in Cincinnati, Ohio, revealed that Silverman was developed as a suspect in drug distribution activities in Meigs, Athens and Franklin Counties as early as the summer of 1987. According to the DEA (Columbus Branch) and the BCI Investigative Division, Silverman was considered a multi kilo cocaine distributor in Central Ohio based on information provided by confidential informants used in each of the investigations.
5. On October 28, 1987, DEA Agents in Columbus, Ohio debriefed their confidential informant regarding drug distribution activities. The informant advised that Silverman was the head of a cocaine trafficking organization that distributed kilos of cocaine on a monthly basis in Columbus and Athens, Ohio. Further, the informant admitted that he met Sil-verman during the summer of 1987 and began selling quantities of drugs for him shortly thereafter. The informant advised agents that Silverman supplied cocaine to various individuals who further distributed the drugs in Meigs County and The Ohio State University and Ohio University campus areas. According to the informant, these individuals sold between two and eight ounces of cocaine on a weekly basis. The informant advised the DEA case agent that in August of 1987, Silverman supplied the informant and an unindicted co-conspirator with one kilo of cocaine which was to be sold to them. According to the informant, he and the unindicted co-conspirator had never distributed such a large quantity of cocaine. They proceeded to “front out” the cocaine and quickly became in debt to Silverman. The DEA agent and the informant would be willing to testify to the one kilo transaction and associated activities involving Silverman if requested to do so by the Court.
6. The Ohio Bureau of Criminal Identification-Investigative Division received information in 1987 involving drug distribution activities in which Silverman was involved. According to the BCI case agent, an investigation began after the Athens Police Department and Ohio University Security contacted him regarding the belief that Silverman distributed cocaine on the Ohio University Campus.
7. A Captain on the Athens Police Department was interviewed during the presen-tence investigative process regarding his knowledge of the defendant. According to the Captain, the Athens Police Department had compiled intelligence information pertaining to Silverman’s drug distribution activities in the Central Ohio area. In August of 1987, the Athens Police Department interviewed one of their informants who advised that Silverman transported shipments of cocaine from the State of New York to Ohio on a bimonthly basis. The informant specified that Silverman transported approximately two pounds of cocaine to the Columbus area and approximately two pounds to the Cincinnati area. According to the Athens Police Department, the informants’ statements substantiated the information compiled in the intelligence file regarding Silverman’s activities. The Captain of the Athens Police Department indicated that he would be willing to testify to the truthfulness of the aforementioned investigation if required to do so by the Court.
*15328. During the BCI investigation, the same confidential informant used by the Athens Police Department specified to agents that Silverman was a large volume distributor of cocaine in Central Ohio.
9. Drug Enforcement Administration agents in Cincinnati, Ohio obtained information in September of 1987 pertaining to Silverman’s drug distribution activities. According to the agents, a female defendant charged federally with possession of cocaine discussed her knowledge of Silverman with a cellmate. On September 2, 1987, the cellmate telephonically contacted the DEA and advised them of the information supplied to her by the female defendant. According to the cellmate, the inmate advised that she had been previously involved with a cocaine distributor based in Miami, Florida. She indicated that she had met an individual named Ira Silverman who had promised her more decision making freedom regarding cocaine distribution. The cellmate indicated, that Silverman resided in an apartment complex (West Green) near the Ohio University Campus and had a previous carrying concealed weapon conviction. Further, she advised that Silver-man brought cocaine through the Columbus International Airport and distributed kilogram volumes in Athens and Meigs Counties. At a later date, DEA agents in Cincinnati, Ohio attempted to interview the inmate based on the information provided by her cellmate, but she denied that she knew Ira Silverman. It should be noted that DEA agents in Cincinnati have indicated that they would be willing to testify to the truthfulness of this information if requested to do so by the Court.
10. According to the DEA case agent in Columbus, their investigation was initially targeted at individuals who allegedly worked for Silverman as drug distributors, From October 1987 to February 1988, DEA agents, Detectives from the Columbus Police Department and the confidential informant discussed the drug related operations in which Silver-man and two unindicted co-conspirators were involved in. On November 11, 1987, the confidential informant made a controlled buy of one-eighth of an ounce of cocaine from one of the unindicted co-conspirators. The cocaine was purchased for $260 in City recorded funds and laboratory tests reveal that the net weight of the cocaine was 3.36 grams with a purity level of 93%.
11. On February 14, 1988, the confidential informant spoke with one of the unindict-ed co-conspirators and advised that he wished to purchase one-fourth of an ounce of cocaine. On the following day, the informant spoke with narcotic detectives at which time he was given $260 in City recorded funds and instructed to purchase one-eighth of an ounce of cocaine. Upon his arrival at the residence, the unindicted co-conspirator advised the informant that the cocaine transaction could not be completed until Silverman arrived because he was in possession of the cocaine. The informant left the residence and spoke with detectives regarding the fact that Silverman was in possession of cocaine. The informant returned to the residence and met with Silverman. According to the informant, he gave Silverman the $260 for the cocaine but Silverman kept the money and did not complete the transaction. According to the information, Silverman kept the money and applied it to a debt owed by the informant. The informant proceeded to leave the residence and advised detectives that one of,the unindict-ed co-conspirators had advised him that Silverman was in possession of at least two ounces of cocaine. The detectives followed Silverman who was being chauf-fered in a white Lincoln Town Car limousine. Detectives proceeded to stop the automobile and transported the limo driver, Silverman and an unindicted co-conspirator to Police Headquarters until a search warrant could be obtained.
12. A search of the limousine revealed a bag of white powder which was inside a black gym bag. Laboratory tests revealed that the powder was cocaine with a net weight of 52.9 grams. The purity *1533level of the cocaine was 93%. In addition, officers confiscated a list of names on a notebook and a number of tapes which contained tape recordings of telephone conversations between Silverman and various individuals. The DEA case agent indicated that the list of names was written by Silverman and represented individuals who distributed drugs for him throughout Central Ohio. This information was substantiated by the DEA case agent through contacts with the Meigs County Sheriff’s Office.
13. On February 15, 1988, detectives interviewed the limousine driver who was hired by Silverman to transport him to various places during the day. The driver indicated that he drove to 2280 Muir-wood and was met by Silverman. The defendant advised the driver that he would need the limousine for approximately five hours and that he had errands to run in Columbus, Ohio and needed to travel to Ohio University in Athens. Silverman paid the driver $175 in cash. The driver recalled that as Silverman exited the apartment, he carried a black, nylon duffle bag. The limo driver offered to put the bag in the trunk but Silverman declined and kept the bag with him in the passenger compartment of the limo.
14. On the date of the arrest, one of the individuals arrested expressed a willingness to cooperate with Police and signed a consent to search his residence at 2280 Muirwood Drive. The individual advised that a quantity of marijuana was present at the home and that Silverman had a key to the home and stored various things at the house. The individual admitted that among the items stored at his home was approximately ten to twenty sticks of dynamite stored in a safe in the bedroom. The Columbus Eire Department Bomb Squad was contacted in order to secure the explosives. Narcotic Detectives confiscated three pounds of marijuana and a set of scales in addition to a semi-automatic handgun.
15. Ira Silverman is considered highly culpable regarding his involvement in the instant offense and associated drug related activities. As previously indicated in Paragraph 8, DEA received information from an informant that Silverman is an organizer of a cocaine distribution network. The DEA case agent confirmed that the investigation involved Silverman and approximately five additional individuals who distributed cocaine for him. As it relates to the instant offense, Silver-man appears to be culpable due to the fact that he was in possession of the fifty-three grams of cocaine and was an active participant in the foiled transaction with the confidential informant. Sil-, verman kept the City recorded funds and decided not to sell drugs to the informant.
. William W. Wilkins, Jr. & John R. Steer, Relevant Conduct: The Cornerstone of the Federal Sentencing Guidelines, 41 S.C.L.Rev. 495, 496 (1990).
Section 1B1.3 defines "relevant conduct" as follows:
§ 1B1.3. Relevant Conduct (Factors that Determine the Guideline Range)
(a) Chapters Two (Offense Conduct) and Three (Adjustments). Unless otherwise specified, (i) the base offense level where the guide-. line specifies more than one base offense level, (ii) specific offense characteristics and (iii) cross references in Chapter Two, and (iv) adjustments in Chapter Three, shall be determined on the basis of the following:
(1) all acts and omissions committed or aided and abetted by the defendant, or for which the defendant would be otherwise accountable, that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense, or that otherwise were in furtherance of that offense;
(2) solely with respect to offenses of a character for which § 3D1.2(d) would require grouping of multiple counts, all such acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction;
(3) all harm that resulted from the acts or omissions specified in subsections (a)(1) and (a)(1) above, and all harm that was the object of such acts or omissions; and
(4) any other information specified in the applicable guideline.
. A belated addition to the opinion of the court at page 1514 of the majority opinion seems to deny that the District Court relied on multiple hearsay in enhancing Silverman’s sentence. If this is what the majority means to say, the Court is in error. The record clearly proves that the additional sentence based on unconvicted conduct is founded entirely on hearsay, most of it three or more levels deep. Judge Graham below specifically ruled that multiple hearsay is admissible. He states at page 301 of the Appendix that "the facts clearly indicate that this [the two ounce transaction] is only the top of the iceberg" and that "the information before the court could lead to the conclusion that he [Sil-verman] previously engaged in the sale of not only one kilo of cocaine, but perhaps one and a half or two kilos of cocaine.” And for this reason Judge Graham increased the sentence. I can find no nonhearsay evidence in the record from which such a finding and sentence could be made. Here is an example of the testimony of DEA agent Robbins that prompted this finding:
'Q. Now, did you become aware that Mr. Silverman had also been under investigation by the Ohio Bureau of Criminal Investigation?
A. I was aware they were conducting an investigation, that’s correct. I do not know specifically what their investigation included.
Q. Did you become aware that he had been under investigation by the Athens of Ohio Police Department?
A. Yes, I had a conversation with the chief of police at Athens, Georgia — Athens Ohio.
Q. What did you learn from the chief?
A. Ira Silverman had been under investigation for some time by his department and the Ohio University Department as a dealer of cocaine, marijuana and also at one time acid, LSD.
Q. Were you able to ascertain if the Athens, Ohio police department had any evidence of his involvement in any of those activities?
A. I don’t know that we discussed real or hard evidence. It was more that they had been investigating him, and they were aware that he was selling drugs on campus.
Transcript, Presentencing Hearing, United States v. Silverman, No. CR-2-88-025 (S.D.Ohio, Aug. 19, 1988), contained in Joint Appendix, No. 90-3205, at 250-51. Moreover Judge Graham at page 289 of the Appendix explicitly accepted the presentence report of officer Dierna as a key basis for sentencing. That report is appended as an appendix to this opinion. The facts stated there which the court accepted over defendant’s objection are all hearsay — most of them 3, 4 and 5 levels deep.
. Every state sentencing commission in the United States, contrary to the federal commission, has adopted conviction offense sentencing instead of so-called "real offense sentencing" or sentencing on the basis of "relevant conduct." They did so because they believed that such a "relevant conduct” system not based on convicted conduct would violate due process and other constitutional provisions. Dale G. Parent, Structuring Criminal Sentences: The Evolution of Minnesota’s Sentencing Guidelines 62-63, 159-61 (1988).
. See supra note 2.
. It is proper to enhance a defendant's sentence for conduct related to the offense of conviction such as role in the offense, degree of planning required, and the defendant's criminal history. The Guidelines already do this, but they go further by also mandating incremental penalties for separate offenses that the prosecution has not and may not be able to prove.
. The text of § 3553(a) provides in part as follows:
(a) Factors to be considered in imposing a sentence.—
The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of the subsection. The court, in determining the particular sentence to be imposed, shall consider—
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense.
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; ...
Referring to § 3553(a) the Senate Report explains:
The bill requires the judge, before imposing sentence, to consider the history and characteristics of the offender, the nature and circumstances of the offense, and the purposes of sentencing.
S.Rep. i)io. 98-225, 98th Cong., 2d Sess., reprinted in 1984 U.S.C.C.A.N. 3182, 3235 (emphasis added).
The section-by-section analysis of the 1987 Amendments to the Sentencing Reform Act of 1984 by the House of Representatives reinforces the view that the correct sequence of sentencing steps must first take into account § 3553(a):
Section 3553(a) as enacted by the Sentencing Reform Act of 1984 requires that the court (1) consider several factors, including the purposes of sentencing, and (2) "impose a sentence sufficient, but not greater than necessary, to comply with” the purposes of sentencing. Thus, if the court finds that the sentence called for by the applicable sentencing guidelines is greater than necessary to comply with the purposes of sentencing, section 3553(a) would seem to require the court to impose a more lenient sentence.
Such an interpretation, it might be argued, is inconsistent with the Sentencing Reform Act’s intention to limit judicial discretion in sentencing. That argument, however, is not convincing. The Sentencing Reform Act of 1984 limited, but did not eliminate, judicial sentencing discretion.
133 Cong.Rec. 31,947 (1987).
.See Daniel J. Freed & Mark Miller, Taking "Purposes" Seriously: The Neglected Requirement of Guideline Sentencing, 3 Fed.Sentencing Rep. 295, 297 (1991).
. Kenneth R. Feinberg, The Federal Guidelines and the Underlying Purposes of Sentencing, 3 Fed.Sentencing Rep. 326, 328 (1991).
. The Sentencing Commission in its commentary to § 6A1.3 states:
*1525The informality [of the old system] was to some extent explained by the fact that particular offense and offender characteristics rarely had a highly specific or required sentencing consequence. This situation will no longer exist under sentencing guidelines. The court’s resolution of disputed sentencing factors will usually have a measurable effect on the applicable punishment.... [Disputes about sentencing factors must be resolved with care.
.Section 6A1.3(b) provides: "The court shall resolve disputed sentencing factors in accordance with Rule 32(a)(1), Fed.R.Crim.P. (effective Nov. 1, 1987), notify the parties of its tentative findings and provide a reasonable opportunity for the submission of oral and written objections before the imposition of sentence.” Rule 32(c)(3)(D) provides that "the court shall, as to each matter controverted, make a finding as to the allegation_” Further the rule provides that "a written record of such findings and determinations shall be appended to and accompany any copy of the presentence investigation report....”
. 18 U.S.C. § 3742 provides for appellate re-. view of Guidelines sentences.
. Section 6A1.3 of the Guidelines provides only that the court will consider the relevant evidence "without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy.”
. In 1949, when Williams was decided, Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), had not yet incorporated the Confrontation Clause into the Fourteenth Amendment as a right in state prosecutions. The older concept of “ordered liberty” under Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288 (1937), was still the guiding principle then.
. For a further, more comprehensive description of the system in operation, see Daniel J. Freed, Federal Sentencing in the Wake of Guidelines: Unacceptable Limits on the Discretion of Sentencers, 101 Yale L.J. 1681 (1992). Professor Freed is one of the country's leading scholars in the field of sentencing. He is the editor of the Federal Sentencing Reporter and the Director of the Criminal Sentencing Program at Yale Law School from which the main ideas for the Sentencing Reform Act of 1984 emanated.