concurring:
I concur in the judgment and opinion of the court, but I join the final two paragraphs of Part II only because I am bound as a member of a panel to apply the precedent1 of this circuit.
' I.
There was a time when “[tjhe law ‘attached] particular significance to an acquittal.’” United States v. DiFrancesco, 449 U.S. 117, 129, 101 S.Ct. 426, 433, 66 L.Ed.2d 328 (1980) (quoting United States v. Scott, 437 U.S. 82, 91, 98 S.Ct. 2187, 2194, 57 L.Ed.2d 65 (1978)). That was a time before the advent of the sentencing guidelines, under which punishment is methodically tallied up and meted out with little regard for acquittals, and sometimes with no regard at all.2
In United States v. Concepcion, 983 F.2d 369 (2nd Cir.1992), in opinions concurring in the panel’s judgment and dissenting from denial of rehearing en banc, Judge Newman detailed the background causes of the bizarre meaninglessness of acquittal under the guidelines. Id. at 393-396. The root of it all seems to be the idea that every flexible, unstructured aspect of pre-guidelines sentencing procedure can and should be incorporated into a strict new order based on discrete fact-finding. Everything a pre-guide-lines court could have considered is identified, classified, and quantified. Though these facts and considerations have now assumed vital importance, the guidelines leave the rules of evidence and burden of proof in their relaxed, pre-guidelines state. The only important role the actual offense of conviction plays is to set an absolute upper or lower statutory limit on the sentence. The sentence can be based on all manner of other “relevant” criminal conduct, uncharged or even charged and acquitted. The sentencing hearing is at bottom a mini-trial of the defendant’s guilt or innocence of these many charges, initiated not by a grand jury but by a probation officer, with facts found by a preponderance rather than beyond a reason*898able doubt, and with no right to a jury as finder of fact. Finally, as Judge Newman pointed out, the “convictions” obtained at sentencing are “price[d] ... at exactly the same level of severity as convicted conduct.” Concepcion, 983 F.2d at 394. As regards uncharged “relevant conduct,” this pricing is at best a poor policy choice; as regards charges on which the jury has acquitted the defendant, it is just wrong.
In short, though it stands alone against the crescendo of the other courts of appeals,3 I agree with the Ninth Circuit that a defendant ought not be punished for a charge on which he has been acquitted in the very same proceeding.4 United States v. Brady, 928 F.2d 844 (9th Cir.1991).
II.
Aside from the larger issue of “relevant”but-acquitted conduct, I have some concern about the particular enhancement for “possession” of a firearm used here. We have interpreted the guidelines to require the government to prove “enhancing” facts by only a preponderance of the evidence. United States v. Urrego-Linares, 879 F.2d 1234, 1237 (4th Cir.), cert. denied, 493 U.S. 943, 110 S.Ct. 346, 107 L.Ed.2d 334 (1989); United States v. Powell, 886 F.2d 81, 85 (4th Cir.1989), cert. denied, 493 U.S. 1084, 110 S.Ct. 1144, 107 L.Ed.2d 1049 (1990). Due process tolerates this unburdensome burden, McMillan v. Pennsylvania, 477 U.S. 79, 91-93, 106 S.Ct. 2411, 2418-20, 91 L.Ed.2d 67 (1986), but I reject any notion that it would tolerate less.5
U.S.S.G. § 2Dl.l(b)(l) is succinct and straightforward: “If a dangerous weapon (including a firearm) was possessed, increase by two levels.” If the language of the guideline were the whole of it, I think it would be a very close question whether the district court’s finding that Hunter “possessed” a gun is clearly erroneous.
However, the commentary to this guideline considerably lightens the government’s burden. It need not prove possession, actual or constructive, but rather must merely show the presence of a firearm: “The adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.” Thus, unless the defendant can prove that it was “clearly improbable” that a “present” gun (whatever that means) was connected to the offense, the guidelines presume that he pos*899sessed it. I think that this mandatory, burden-shifting presumption could permit a “possession” finding (and the inexorable deprivation of liberty) on a quantity of proof that falls below the due process minimum; indeed, I fear that it may have done so in this case.
III.
I know that the momentum of the age is against me, and the circuit “split” is as one-sided as it could be. Nonetheless, we have taken no oath to hew to the well-worn path or ride like flotsam on the current tide of opinion. I hope that, in this or some future case, our court will reconsider the precedents that permit Hunter to be punished for possession of a firearm, notwithstanding his acquittal of the charge and the guidelines’ tenuous presumption that the “presence” of a firearm equals its possession.
In some way, the law must be modified. A just system of criminal sentencing cannot fail to distinguish between an allegation of conduct resulting in a conviction and an allegation of conduct resulting in an acquittal.
Concepcion, 983 F.2d at 396 (Newman, J., dissenting from the denial of rehearing en banc).
. See United States v. Nelson, 6 F.3d 1049, 1057 (4th Cir.1993); United States v. Morgan, 942 F.2d 243 (4th Cir.1991); United States v. Johnson, 943 F.2d 383 (4th Cir.), cert. denied, - U.S. -, 112 S.Ct. 667, 116 L.Ed.2d 758 (1991); United States v. Romulus, 949 F.2d 713 (4th Cir.1991), cert. denied, - U.S. -, 112 S.Ct. 1690, 118 L.Ed.2d 403 (1992).
. See, e.g., United States v. Concepcion, 983 F.2d 369 (2nd Cir.1992), cert. denied, — U.S. — —, 114 S.Ct. 163, 126 L.Ed.2d 124 (1993), where a defendant’s guidelines range for two weapons offenses was identical to the range he would have faced had he been convicted, rather than acquitted, of a narcotics conspiracy. Moreover, without inclusion of the narcotics conspiracy in the defendant's "relevant conduct,” his guidelines sentence would have been roughly twenly years shorter. Id. at 393 (Newman, J., concurring).
. See United States v. Boney, 977 F.2d 624, 635 (D.C.Cir.1992); United States v. Mocciola, 891 F.2d 13, 16-17 (1st Cir.1989); United States v. Rodriguez-Gonzalez, 899 F.2d 177, 180-181 (2nd Cir.), cert. denied, 498 U.S. 844, 111 S.Ct. 127, 112 L.Ed.2d 95 (1990); United States v. Ryan, 866 F.2d 604, 608-609 (3rd Cir.1989); United States v. Juarez-Ortega, 866 F.2d 747-748-749 (5th Cir.1989); United States v. Duncan, 918 F.2d 647, 652 (6th Cir.1990), cert. denied, 500 U.S. 933, 111 S.Ct. 2055, 114 L.Ed.2d 461 (1991); United States v. Fonner, 920 F.2d 1330, 1332-1333 (7th Cir.1990); United States v. Dawn, 897 F.2d 1444, 1449-1450 (8th Cir.), cert. denied, 498 U.S. 960, 111 S.Ct. 389, 112 L.Ed.2d 400 (1990); United States v. Coleman, 947 F.2d 1424, 1428-1429 (10th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1590, 118 L.Ed.2d 307 (1992); United States v. Rivera-Lopez, 928 F.2d 372, 372-373 (11th Cir.1991); and this circuit's cases cited in footnote 1 supra.
. A defendant's acquittal does not, of course, mean that he is immune to facing evidence concerning the acquitted charge if it is relevant and admissible in some later proceeding with a lesser burden of proof. See, e.g., Dowling v. United States, 493 U.S. 342, 348-349, 110 S.Ct. 668, 671-672, 107 L.Ed.2d 708 (1990), and cases cited therein. Punishing him, though, for the charge mocks the themes of fair trial and fair sentence that resound in the Fifth, Sixth, and Eighth Amendments.
.It is true that sentencing judges traditionally considered background facts about a defendant "without any prescribed burden of proof at all." McMillan, 477 U.S. at 91, 106 S.Ct. at 2419. But these judges were not "finding facts" of the kind or in the sense that today’s district judges do. The evidence heard under the ancien regime went into a thinking human mind, to be compared with other like and unlike, evidence, and ultimately producing a judgment about the proper sentence. Identifying which "finding of fact” was responsible for which portion of the sentence would have been an idle exercise, because nothing of the sort happened.
Today, every finding made at sentencing has a rigid, quantifiable effect on the defendant’s liberty. Of all the levels of confidence a rational mind can have in its resolution of a dispute of fact, "more likely than not" is the minimum. Any lesser standard resides in the realm of irrationality. When life, liberty, or property are at stake, any lesser standard would violate due process.