concurring in part and dissenting in part.
I concur in the court’s conclusion that the government proved by a preponderance of the evidence that there was a “substantial connection” between Ms. Clemons’s minivan and her criminal offense of possessing a controlled substance by theft, misrepresentation, fraud, forgery, deception, or subterfuge. Clemons’s use of the vehicle to gain physical possession of the drugs and to evade detection — by visiting multiple pharmacies, using drive-thru lanes rather than entering the pharmacies, and conducting counter-surveillance — provides abundant evidence of the connection between the vehicle and her commission of the crimes.
I respectfully dissent, however, from the court’s decision to remand the case to the district court to decide again the constitutional question whether forfeiture of the minivan is prohibited by the Excessive Fines Clause of the Eighth Amendment. The case was tried to the district court on stipulated facts, and there is thus no need to remand for additional findings of fact. Although the district court based its legal decision in part on a mistaken understanding of the applicable fine range under the United States Sentencing Guidelines, the parties have briefed and argued the appeal according to the correct guideline range, and our review of the district court’s legal determination is de novo. United States v. Moyer, 313 F.3d 1082, 1086 (8th Cir.2002). We have the evidence and argument necessary to decide the case, and a remand would primarily lay the groundwork for yet another likely appeal of the constitutional question, in which the parties would brief and argue the same facts and law presented to us in this appeal.
On the merits, I would hold that forfeiture of the minivan is constitutional. At the outset, there is a substantial question whether “gross proportionality” analysis under the Excessive Fines Clause even applies to the forfeiture in this case. In United States v. Bajakajian, 524 U.S. 321, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998), the Supreme Court reiterated that “[ijnstru-mentalities historically have been treated as a form of ‘guilty property’ that can be forfeited in civil in rem proceedings.” Id. at 333, 118 S.Ct. 2028. The Court further *765intimated that an in rem forfeiture of an “instrumentality”- — -that is, property that is “the actual means by which an offense [is] committed” — is not subject to review under the ■ Excessive Fines Clause. Id. at 333 n. 8, 118 S.Ct. 2028. As an example of property that falls within the “strict historical limitation” on the definition of “instrumentality,” the Court cited the forfeiture of an automobile that facilitates the transportation of goods concealed to avoid taxes. Id. at 333 nn.8 & 9, 118 S.Ct. 2028 (citing J.W. Goldsmith, Jr.-Grant Co. v. United States, 254 U.S. 505, 508-10, 41 S.Ct. 189, 65 L.Ed. 376 (1921)).
If, as the Court suggested, an automobile used to “remove” or “conceal” goods to avoid taxes is an “instrumentality” exempt from excessive fines analysis, then it is difficult to see why the vehicle used by Ms. Clemons to procure controlled substances is not similarly situated. Just, as the vehicle in J.W. Goldsmith-Grant Co. was “the actual means by which” the driver committed the offense of removing and concealing goods, the Clemons minivan was “the actual means by which” its owner illegally came into possession of the hydro-codone. See Bajakajian, 524 U.S. at 333 nn.8 & 9, 118 S.Ct. 2028; see also Austin v. United States, 509 U.S. 602, 627-28, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993) (Scalia, J., concurring in part and concurring in the judgment) (scales used to measure out unlawful drug sales are instrumentalities). Clemons used the minivan to appear at the drive-thru window of the pharmacy; hence, the vehicle was “actually used” by her to obtain dominion and control over the prescription drugs. See 524 U.S. at 333 n. 8, 118 S.Ct. 2028. Applying the Court’s analysis of instrumentalities in Ba-jakajian, the in rem forfeiture of the minivan in this ease- appears to raise no issue under the Excessive Fines Clause.
But following the “gross proportionality” inquiry that our court adopted prior to Bajakajian, I also believe that the forfeiture is constitutional. Under that approach, we have considered both whether the forfeited property was an “instrumentality,” or had a close relationship to the criminal offense, and whether the severity of the forfeiture was “proportional” to the gravity of the offense. See generally United States v. 6040 Wentworth Ave., 123 F.3d 685, 688-90 (8th Cir.1997). As the court notes, ante at 9, in considering the proportionality aspect of this analysis, we have said that “ ‘[i]f the value of the property forfeited is within or near the permissible range of fines using the sentencing guidelines, the forfeiture almost certainly is not excessive.’ ” United States v. Sherman, 262 F.3d 784, 795 (8th Cir.2001) (quoting United States v. 817 N.E. 29th Drive, 175 F.3d 1304, 1310 (11th Cir. 1999)), vacated sub nom. United States v. Diaz, 270 F.3d 741 (8th Cir.2001), reinstated, 296 F.3d 680 (8th Cir.2002) (en banc). We presumably have adopted this rule on the view that the Sentencing Commission’s determination of a fine range usually identifies a sanction that is not disproportionately severe in relation to the gravity of the offense.
Here, the permissible fine for Clemons’s criminal offense (if she had been prosecuted in federal court) ranged up to $10,000 under the sentencing guidelines. USSG §§ 2D2.1(a)(l), 5E1.2(c)(3). The stipulated value of the minivan was between $12,000 and $14,000. A value of $12,000 (taking the low end in light of Clemons’s burden of proof) is “near” the guideline maximum of $10,000, and the amount by which it exceeds the guideline range certainly is not so great that “the punishment is more criminal than the crime.” 6040 Wentworth Ave., 123 F.3d at 688 (internal quotation omitted); see also United States v. 427 & 429 Hall St., 74 F.3d 1165, 1172-73 (11th *766Cir.1996) (forfeiture of property valued at $65,000 was not excessive where the maximum fine under the sentencing guidelines was $40,000).
The court recites numerous factors — a total of fourteen, by my count — that may be applicable in determining whether a forfeiture is prohibited by the Eighth Amendment. Some have minimal relevance in this case. The importance of a forfeiture’s effect on innocent parties, for example, “diminishes” where (as here) the property owner has been convicted of a crime and the property is used substantially to facilitate criminal conduct. United States v. Bieri, 68 F.3d 232, 237 (8th Cir. 1995). Other factors (such as the harm caused by the wrongdoer’s act, the value of drugs seized, and the value of the property forfeited) are alternative measures of the gravity of an offense or the severity of a penalty, and absent unusual circumstances, they are subsumed within our general presumption that a penalty within or near the applicable fine range under the guidelines is not grossly disproportionate.
More generally, it seems to me helpful for our court to give some guidance to the district courts about which factors deserve most weight in determining whether a forfeiture constitutes an “excessive fine,” and to consolidate redundant factors where possible. As others have noted, the sort of multi-factor balancing test described by the court today often “leaves much to be desired.” Exacto Spring Corp. v. Comm’r, 196 F.3d 833, 834 (7th Cir.1999). Lists of undifferentiated factors to be balanced on a case-by-case basis often are “redundant, incomplete, and unclear,” id. (quoting Palmer v. City of Chicago, 806 F.2d 1316, 1318 (7th Cir.1986)), and I fear that our ever-growing enumeration in this area is approaching that description. While mul-ti-factor balancing tests increase the discretion of judges, they also heighten the risk of arbitrary decisionmaking, and reduce predictability from one case to the next. Id. at 835. Rational actors in the criminal justice system, whether law enforcement officials or persons who may be subject to the forfeiture statutes, would benefit from clarity in our jurisprudence.
The precedents of the Supreme Court and our court concerning the Excessive Fines Clause suggest that two factors deserve predominant consideration — (1) the relationship between the forfeited property and the criminal offense, see Bajakajian, 524 U.S. at 333 n. 8, 118 S.Ct. 2028; 6040 Wentworth Ave., 123 F.3d at 690; and (2) whether the severity of the penalty is proportional to the gravity of the offense, as measured by whether the value of the forfeited property is within or near the applicable fine range under the sentencing guidelines. Id.; Sherman, 262 F.3d at 795. In this case, both factors support the government’s forfeiture of the minivan. None of the other factors cited by the court presents a strong countervailing consideration that raises a substantial question about the constitutionality of the forfeiture. Accordingly, I would affirm the judgment of the district court.