United States v. Sean Michael Grier

SLOVITER, Circuit Judge,

dissenting, with whom Judge McKee joins.

It is ironic that a Supreme Court decision that upheld two lower court decisions holding that sentences that were based on additional facts found by the sentencing judge by a preponderance of the evidence violated the defendants’ Sixth Amendment rights, United States v. Booker, 543 U.S. 220, 226, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), a decision that bolstered an important constitutional right, should be viewed by the majority to authorize enhancement of a defendant’s sentence based on the sentencing judge’s finding by a preponderance of evidence that the defendant committed a separate offense for which he was never tried or convicted, a decision that erodes a well-established constitutional right. It is even more ironic that the majority does so in the face of the Supreme Court’s most recent opinion in Cunningham v. California, —U.S. —, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007), where the Court reaffirmed its holdings in a series of cases that under the Sixth Amendment it is not the trial judge but the jury that must make the relevant finding of fact upon which a sentencing enhancement is *589based, and that the jury must make that finding beyond a reasonable doubt.

The majority affirms the District Court’s sentence based on its finding by a preponderance of the evidence that Grier committed aggravated assault under Pennsylvania law even though Grier pled guilty only to possession of a firearm by a convicted felon and consistently denied that he committed an aggravated assault. That this court should adopt that view of Booker even though the Booker constitutional opinion (authored by Justice Stevens) was directed to the protection of a defendant’s Sixth Amendment right to a jury determination is simply astonishing.39 The majority’s cramped view of the Sixth Amendment has now been rejected by Cunningham, a case the majority marginalizes in a footnote.

I cannot accept the majority’s abnegation of the Fifth Amendment’s imperative that a criminal defendant is entitled to the determination of his or her guilt beyond a reasonable doubt. The majority so holds based on its expansive interpretation of language in the Booker opinion dealing with the remedy for the Sixth Amendment issue (authored by Justice Breyer). Neither of the Supreme Court’s Booker decisions discussed the Fifth Amendment nor did they suggest that it had no role in sentencing. Yet the majority’s decision abrogates one of the most important, if not the most important, of the rights that the Constitution affords criminal defendants: the right to be found guilty only by a finding beyond a reasonable doubt.

I.

The history and rationale of a criminal defendant’s right to a determination that s/he be convicted only after a jury determination that the defendant is guilty of the crime charged beyond a reasonable doubt needs no extended discussion. As the Supreme Court has stated, a Fifth Amendment challenge, like a Fourteenth Amendment challenge, involves a constitutional protection of “surpassing importance: the proscription of any deprivation of liberty without ‘due process of law.’ ” Apprendi v. New Jersey, 530 U.S. 466, 476, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Although the Constitution does not explicitly require that a finding of guilt be made under a beyond-a-reasonable-doubt standard, the Supreme Court made that explicit when it held: “[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).

The rationale for requiring that rigorous standard of proof was discussed by Justice John Marshall Harlan II with his incomparable analytic reasoning in his concurring opinion in In re Winship where he expounded on the difference between the preponderance-of-the-evidence standard of proof and the beyond-a-reasonable-doubt standard. He explained that “even though the labels used for alternative standards of proof are vague and not a very sure guide to decisionmaking, the choice of the standard for a particular variety of adjudication does ... reflect a very fundamental assessment of the comparative social costs of erroneous factual determinations.” Id. at 369-70, 90 S.Ct. 1068. He further explained that “a standard of proof represents an attempt to instruct the factfinder concerning the degree of confidence our *590society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.” Id. at 370, 90 S.Ct. 1068. He continued that although the two phrases “are quantitatively imprecise, they do communicate to the finder of fact different notions concerning the degree of confidence he is expected to have in the correctness of his factual conclusions.” Id.

Justice Harlan concluded that whereas a preponderance-of-the-evidence standard seems particularly appropriate in civil cases between two parties for money damages where the factfinder need determine that the existence of a fact is more probable than its nonexistence, the criminal case stands on a different footing. Recognizing that there is always a margin of error in factfinding, he quoted from an earlier opinion in which Justice Brennan stated that “ ‘[w]here one party has at stake an interest of transcending value — as a criminal defendant his liberty — this margin of error is reduced as to him by the process of placing on the other party the burden ... of persuading the factfinder at the conclusion of the trial of his guilt beyond a reasonable doubt.’ ” Id. at 372, 90 S.Ct. 1068 (quoting Speiser v. Randall, 357 U.S. 513, 525-26, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958)).

The entitlement to proof beyond a reasonable doubt is “as equally well-founded” as the right to a jury determination and is based in the common law. See Apprendi, 530 U.S. at 478, 120 S.Ct. 2348 (noting that the “demand for a higher degree of persuasion in criminal cases was recurrently expressed from ancient times .... and is now accepted in the common law jurisdictions as the measure of persuasion by which the prosecution must convince the trier of all essential elements of guilt”) (quotation marks and citation omitted). And the right to jury trial “has been enshrined since the Magna Carta.” Booker, 543 U.S. at 239, 125 S.Ct. 738.

The question whether the Fifth Amendment right to due process requires that the fact that formed the basis for Grier’s four-level sentencing enhancement, i.e., that he committed a separate felony while possessing the firearm, be found beyond a reasonable doubt, is a question of law and is therefore subject to plenary review.40 See United States v. Williams, 235 F.3d 858, 861 (3d Cir.2000).

Reiterating established principles of constitutional law, the Court in Booker, quoting Blakely v. Washington, 542 U.S. 296, 301, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), stated that it is “the defendant’s right to have the jury find the existence of ‘any particular fact’ that the law makes essential to his punishment,” Booker, at 543 U.S. at 232, 125 S.Ct. 738, and “[i]f a State makes an increase in a defendant’s authorized punishment contingent on the finding of a fact, that fact — no matter how the State labels it — must be found by a jury beyond a reasonable doubt.” Id. at 231, 125 S.Ct. 738, quoting Ring v. Arizona, 536 U.S. 584, 602, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). If there had been any doubt of the applicability of the beyond-a-reasonable-doubt standard to sentencing enhancements, it should have been put to rest by the language of the Cunningham Court when it said, “This Court has repeatedly held that, under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and *591established beyond a reasonable doubt, not merely by a preponderance of the evidence.” Cunningham, 127 S.Ct. at 863 (emphasis added).

Disregarding the uninterrupted line of decisions that underlay those two principles, the majority approves the conclusion of the District Court that the burden of proof to be applied to its determination that Grier committed an aggravated assault was preponderance of the evidence. Maj. op. at 568. The majority states that “[t]his standard is suggested by the Guidelines [citing not the Guidelines but a commentary in the U.S. Sentencing Guidelines Manual that does not support the proposition], is not precluded by the Fifth or Sixth Amendments, see Booker, 543 U.S. at 259, 125 S.Ct. 738 (‘the remainder of the act functions independently’), and has been approved by this Court, see, e.g., United States v. Mobley, 956 F.2d 450, 455 (3d Cir.1992).” Maj. op. at 568. The majority errs on all three points. If these purported supporting authorities do not support the majority’s adoption of the preponderance-of-the-evidence standard, the majority’s decision is without any support or precedent, the conclusion to which I am drawn.

The majority’s statement that its adoption of the preponderance-of-the-evidence standard “is suggested by the Guidelines,” its first purported authority, is just flat out wrong. There is no Sentencing Guideline that addresses the issue of the standard of proof in a criminal case. Indeed, that would be beyond the authority granted to the Sentencing Commission.

In the Booker constitutional opinion, the Court, asserting that it would be unconstitutional for the Sentencing Commission to define criminal elements, interpreted the Sentencing Reform Act as authorizing the Commission only “to identify the facts relevant to sentencing decisions and to determine the impact of such facts on federal sentences.” Booker, 543 U.S. at 241-42, 125 S.Ct. 738. In so holding, the Court referred to the decision in Mistretta, 488 U.S. 361, 377, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989), where it rejected a challenge to the delegation of that authority. The Booker opinion construed Mistretta as “premised on an understanding that the Commission, rather than performing adjudicatory functions, instead makes political and substantive decisions.” Booker, 543 U.S. at 242, 125 S.Ct. 738. The Booker opinion stated that in Mistretta it noted that “the promulgation of the guidelines was much like other activities in the Judicial Branch, such as the creation of the Federal Rules of Evidence, all of which are non-adjudicatory activities.” Id. Thus, the delegation to the Commission did not encompass a definition of the elements of a criminal offense and adjudicatory functions. The standard of proof, of course, is an adjudicatory function, not delegated to the Commission. Booker, 543 U.S. at 243, 125 S.Ct. 738 (quoting Mistretta).

The quotation included in the majority’s opinion which it believes supports its standard of proof is from the Commentary to Guideline § 6A1.3, a Policy Statement dealing with Resolution of Disputed Factors. One would ordinarily assume that if the issue of standard of proof for disputed factors appeared somewhere in the Guidelines, this would be the appropriate place. But there is nothing in the text of that Guideline/Policy Statement that addresses the standard of proof. Nor, if read carefully, does the sentence of the statement in the Commentary quoted by the majority address the issue of the required standard of proof of a criminal offense. Instead it is directed only to the issue of “resolving disputes regarding application of the guidelines to the facts of a case.” The entirety of the sentence at issue is re*592peated in the margin.41 Because there is no Guideline applicable to the standard of proof of a criminal offense, there is no “dispute regarding application of [any] guideline[ ]” and the sentence on which the majority relies is inapplicable.

What is of particular interest and relevance is the discussion of this sentence in the separate opinion of Justice Thomas in Booker, where he states,

The commentary to § 6A1.3 states that the Commission believes that use of a preponderance of the evidence standard is appropriate.... The Court’s holding today corrects this mistaken belief. The Fifth Amendment requires proof beyond a reasonable doubt, not by a preponderance of the evidence, of any fact that increases the sentence beyond what could have been lawfully imposed on the basis of facts found by the jury or admitted by the defendant.

543 U.S. at 319 n. 6, 125 S.Ct. 738 (Thomas, J., dissenting in part) (emphasis added). Cf. United States v. Pimental, 367 F.Supp.2d 143, 153 (D.Mass.2005) (“Certain facts .... assume inordinate importance in the sentencing outcome. So long as they do, they should be tested by our highest standard of proof.”).

Justice Thomas is not the only one to have commented critically on the statement in the Guideline commentary. See, e.g., Note, Sentencing After Booker: The Impact of Appellate Review on Defendants’ Rights, 24 Yale L. & Pol’y Rev. 173, 198-99 (2006) (“Although the Supreme Court has countenanced the preponderance standard at sentencing, the Court has never required the application of that standard .... Moreover, this Guideline has not been officially re-examined by Congress since Apprendi, Blakely, and Booker were decided. Thus, one should not rely on this commentary for the strong proposition that a heightened standard of proof is impermissible.”); see also Douglas A. Berman, Tweaking Booker: Advisory Guidelines in the Federal System, 43 Hous. L.Rev. 341, 387 (2006) (“Notably, the Sentencing Reform Act does not speak to the burden of proof issue at all. And though the commentary to Guidelines’ § 6A1.3 states that the Commission ‘believes that use of a preponderance of the evidence standard is appropriate ... [’] in resolving factual disputes, this provision is overdue for reexamination in the wake of the Supreme Court’s decisions in Apprendi Blakely, and Booker.

I leave Booker, the heart of the majority’s decision, for later discussion and turn to the majority’s third proffered authority for its adoption of the preponderance-of-the-evidence standard for proof of an offense, i.e., United States v. Mobley, 956 F.2d 450 (3d Cir.1992). The issue in that case was whether the Government, which sought to enhance defendant’s sentence following conviction of possession of a firearm by a convicted felon because the gun was stolen, must show defendant knew the gun was stolen to enhance his sentence. In a two to one decision, with Judge Mans-mann dissenting, we held that the then-applicable Guideline, § 2K2.1(b)(2) (authorizing enhancement based on fact that the gun was stolen), did not have a scienter element. The majority rejected Judge Mansmann’s position that a sentencing enhancement under the Guidelines may not be substituted for a criminal conviction consistent with due process.

*593The facts in Mobley are, on their face, distinguishable from Grier’s situation because the nexus in Mobley between possession of the weapon and its being a stolen weapon clearly satisfied the relevant Guideline prerequisite that the stolen gun was in connection with the offense of conviction. But I need not rely on that distinction. Mobley was a panel decision. It is our tradition that a panel decision does not bind the court sitting en banc. As we stated in an earlier en banc decision, “Because we are now en banc, neither the language nor the holdings of those panel decisions bind us here.” Orson, Inc. v. Miramax Film Corp., 189 F.3d 377, 380 (3d Cir.1999) (en banc); see also Mariana v. Fisher, 338 F.3d 189, 201 (3d Cir.2003); Halderman v. Pennhurst State School & Hospital, 673 F.2d 628, 641 n. 1 (3d Cir.1982) (“To be sure, this court, sitting en banc, [may] overrule ... panel decisions.”) (en banc) (Garth, J., concurring in part and dissenting in part). It follows that Mobley, one of the majority’s three proffered authorities, cannot serve as precedent for the majority’s adoption of the preponderance-of-the-evidence standard.

II.

I turn then to Booker, on which the majority places its principal reliance for its holding that “[o]nce a jury has found a defendant guilty of each element of an offense beyond a reasonable doubt, he has been constitutionally deprived of his liberty and may be sentenced up to the maximum sentence authorized under the United States Code without additional findings beyond a reasonable doubt.” Maj. op. at 561. Neither of the Booker opinions ever says or suggests such a proposition, and I believe it is seriously flawed, certainly as applied in this case.

Although Grier pled guilty to possession of a firearm by a convicted felon (the guilty plea equivalent to a jury finding), no jury found him guilty of aggravated assault, a different and independent offense. Grier’s guilty plea to one offense (for which he would have been entitled to the beyond-a-reasonable doubt standard) cannot justify diminution of the applicable standard of proof applied by a judge for a separate offense.

I know of no authority that contests that the beyond-a-reasonable doubt standard is as equally applicable to a judge who sits as the trier of fact as to a jury. In In re Winship, the Court held that a provision of the New York Family Court Act that authorized a judge to determine by a preponderance of the evidence that a juvenile was delinquent — that is, guilty of a crime-violated the juvenile’s due process rights. In reversing the decision of the New York Court of Appeals that had sustained the constitutionality of the Act, Justice Brennan noted that “the requirement of proof beyond a reasonable doubt has this vital role in our criminal procedure for cogent reasons. The accused during a criminal prosecution has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction.” 397 U.S. at 363, 90 S.Ct. 1068.

Can the majority really be suggesting that the Due Process Clause, with its requirement of proof beyond a reasonable doubt, is never applicable to any sentencing issue? In Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), the Court vacated a sentence imposed upon a criminal defendant who was found guilty of violating the federal carjacking statute, 18 U.S.C. § 2119. Section 2119 makes carjacking a crime, and then in three subsections sets forth what the Court held are three distinct offenses with three maximum penalties. See id. at 229, *594119 S.Ct. 1215. Subsection 1 provides that the penalty for carjacking is a fine or imprisonment of not more than 15 years or both; Subsection 2 provides that if serious bodily injury results, the penalty- is a fine or imprisonment of not more than 25 years or both; Subsection 3 provides that if death results, the penalty is a fíne or imprisonment for any number of years up to life or both.

Serious bodily injury was not pled in the Jones indictment nor did the district court instruct on that issue. Nonetheless, the district court sentenced Jones to 25 years on the carjacking, finding by a preponderance of the evidence that there was serious bodily injury. The Jones factual scenario does not differ markedly from that presented in this case.

When the Jones case reached the Supreme Court, the Court rejected the Government’s argument that the fact of serious bodily harm was merely a sentencing factor and instead construed § 2119 “as establishing three separate offenses by the specification of distinct elements, each of which must be charged by indictment, proven beyond a reasonable doubt, and submitted to a jury for its verdict.” Id. at 252, 119 S.Ct. 1215. The Court found that permitting the judge to make findings regarding serious bodily harm to the victim by a preponderance of the evidence and thereby increasing the sentencing range for that crime would present a serious due process issue. See id. at 243, 119 S.Ct. 1215.

The majority states that Jones was a statutory interpretation case, not a statement of constitutional doctrine, and suggests that the holding in Jones has no relevance to the issue before us. That reading of Jones is belied by the rationale for the opinion given by the Supreme Court itself which discussed at length the “ ‘grave and doubtful constitutional questions’ ” id. at 239, 119 S.Ct. 1215 (quoting U.S. ex rel. Attorney Gen. v. Del. & Hudson Co., 213 U.S. 366, 408, 29 S.Ct. 527, 53 L.Ed. 836 (1909)),42 that would arise were it to interpret the statute to treat the finding of “serious bodily harm” as a sentencing factor to be found by the judge rather than as an element of the offense that “must be charged in the indictment, submitted to a jury, and proven by the Government beyond a reasonable doubt.” Jones, 526 U.S. at 232, 119 S.Ct. 1215.

After citing In re Winship, referred to above, the Jones Court reviewed the holdings in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977), and McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), focusing on the constitutional issues they presented. Jones, 526 U.S. at 240-42, 119 S.Ct. 1215. In a footnote, the Court restated the principles that underlay its view that the carjacking statute, as construed by the Government, might violate the Constitution. It stated, inter alia: “The constitutional safeguards that figure in our analysis concern not the identity of the elements defining criminal liability but only the required procedures for finding the facts that determine the maximum permissible punishment; these are the safeguards going to the formality of notice, the identity of the factfinder, and the burden of proof." Id. *595at 243 n. 6, 119 S.Ct. 1215 (emphasis added).

The majority’s description of the discussion of constitutional rights in Jones as “in the subsidiary context of the interpretative canon of avoidance,” Maj. op. at 566, ignores the fact that the Court itself in Jones gave as the raison d’etre of its statutory interpretation “the serious constitutional questions,” id. at 251, 119 S.Ct. 1215, that would arise under the Government’s interpretation of the statutory language. In contrast to the majority’s relegation of Jones to mere statutory interpretation and “not a statement of constitutional doctrine” regarding “the right to proof beyond a reasonable doubt,” Maj. op. at 566, I note that this very language in Jones identifying “the constitutional safeguards,” specifically including “the burden of proof’ which led the Jones Court to its statutory construction, is quoted at length in the Booker constitutional opinion. Booker, 543 U.S. at 242, 125 S.Ct. 738. As the Court stated in Booker, a contrary holding in Jones “would have reduced the jury’s role ‘to the relative importance of low-level gatekeeping.’ ” Booker, 543 U.S. at 230, 125 S.Ct. 738 (quoting Jones, 526 U.S. at 244, 119 S.Ct. 1215).43

Jones, with its affirmation of the principle that due process protections are required for offense-defining elements, was followed by Apprendi, a decision that even the majority states governs the constitutional issue before us. Maj. op. at 567. It states:

This is a constitutional case, governed by the rule of Apprendi: the rights to a jury trial and to proof beyond a reasonable doubt attach to those facts that increase the statutory maximum punishment to which the defendant is exposed. 530 U.S. at 490, 120 S.Ct. 2348.

Maj. op. at 567.

In Apprendi, the Court distinguished between sentencing factors which a district court may find by a preponderance of the evidence when exercising its discretion to sentence within a given range, and those sentencing determinations for which due process demands a greater degree of procedural protection. The Court distinguished the determinations of sentencing factors, which it characterized as “factors relating both to the offense and offender,” Apprendi, 530 U.S. at 481, 120 S.Ct. 2348, from the determinations of what are usually characterized as elements of the offense, to which greater due process protections apply. As the Court stated:

If a defendant faces punishment beyond that provided by statute when an offense is committed under certain circumstances but not others, it is obvious that both the loss of liberty and the stigma attaching to the offense are heightened; it necessarily follows that the defendant should not — at the moment the State is put to proof of those circumstances — be deprived of protections that have, until that point, unquestionably attached.

Id. at 484, 120 S.Ct. 2348.

The Court continued, “[s]ince Winship, we have made clear beyond peradventure that Winship’s due process and associated jury protections extend, to some degree, ‘to determinations that [go] not to a defendant’s guilt or innocence, but simply to the length of his sentence.’ ” Id. (quoting Almendarez-Torres v. United States, 523 U.S. 224, 251, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) (Scalia, J., dissenting)). The *596Court then explained which facts are entitled to the due process protections. In writing for the Apprendi majority on the constitutional issue, Justice Stevens quoted from his concurring opinion in Jones, where he wrote, “ ‘[I]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt.’ ” (quoting Jones, 526 U.S. at 252-53, 119 S.Ct. 1215 (Stevens, J., concurring)).

The holding of Jones that due process protections are required for offense-defining elements, as distinguished from sentencing factors, was the precedent on which the Supreme Court’s decision in Apprendi was based. Apprendi pled guilty in state court to two counts of possession of a firearm for an unlawful purpose, and one count of unlawful possession of an antipersonnel bomb. Apprendi 530 U.S. at 469-70, 120 S.Ct. 2348. The State reserved the right to seek a higher enhanced sentence on the ground that one count of firearms possession was committed with a biased purpose in violation of N.J. Stat. § 2C:44-3, which was punishable by imprisonment for between ten and twenty years. Id. at 470, 120 S.Ct. 2348. After a hearing, the state trial judge found by a preponderance of the evidence that Apprendi’s crime was motivated by racial bias in violation of the state statute and enhanced Apprendi’s sentence accordingly. Id. at 471, 120 S.Ct. 2348. The finding doubled the maximum range within which Apprendi could be sentenced.

Although there was a “full evidentiary hearing” in the New Jersey court on whether Apprendi acted with a biased purpose, that issue was not presented to the jury. The Supreme Court thus stated, “The question whether Apprendi had a constitutional right to have a jury find such bias on the basis of proof beyond a reasonable doubt is starkly presented.” Id. at 475-76, 120 S.Ct. 2348. The Court quoted from its earlier opinion in United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995), affirming that due process requires, inter alia, that a criminal defendant be afforded “ ‘a jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.’ ” Apprendi, 530 U.S. at 477, 120 S.Ct. 2348 (quoting Gaudin, 515 U.S. at 510, 115 S.Ct. 2310). The Court then noted that historically “[j]ust as the circumstance of the crime and the intent of the defendant at the time of commission were often essential elements to be alleged in the indictment, so too were the circumstances mandating a particular punishment.” Ap-prendi, 530 U.S. at 480, 120 S.Ct. 2348.

The Apprendi Court held that the New Jersey statutory scheme, allowing a judge to make a finding by a preponderance of the evidence that the defendant’s “purpose” for unlawfully possessing the weapon was to intimidate his victim on the basis of race, was unconstitutional. Apprendi 530 U.S. at 491-92, 120 S.Ct. 2348. The Court rejected New Jersey’s argument that the required “motive” finding was simply a “traditional” sentencing factor. Id. at 493-94, 120 S.Ct. 2348. It continued, “[t]he degree of criminal culpability the legislature chooses to associate with particular, factually distinct conduct has significant implications both for a defendant’s very liberty, and for the heightened stigma associated with an offense the legislature has selected as worthy of greater punishment.” Id. at 495, 120 S.Ct. 2348. Distinguishing Almendarez-Toms (which held evidence of prior convictions admissible without further proof), the Court stated:

*597there is a vast difference between accepting the validity of a prior judgment of conviction entered in a proceeding in which the defendant had the right to a jury trial and the right to require the prosecutor to prove guilt beyond a reasonable doubt, and allowing the judge to find the required fact under a lesser standard of proof.

Id. at 496, 120 S.Ct. 2348 (emphasis added).44

That statement alone is dispositive of this appeal. Grier’s sentence was enhanced based on the District Judge’s finding that Grier committed an aggravated assault despite the fact that no jury found that he had done so and no factfinder, not even the judge, so found beyond a reasonable doubt. The majority’s only response to the reasoning in Apprendi set forth above, is “[l]ike the right to a jury trial, the right to proof beyond a reasonable doubt attaches only when the facts at issue have the effect of increasing the maximum punishment to which the defendant is exposed. Apprendi, 530 U.S. at 489-94, 120 S.Ct. 2348. The advisory Guidelines do not have this effect.” Maj. op. at 565. This, I respectfully state, is a non sequi-tur. If the decisions in Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), discussed infra, and Apprendi were not enough to dissuade the majority from what I believe is its mistaken path, then the Supreme Court’s most recent opinion on the issue in Cunningham could not have been more clear. Under the California determinative sentencing law (“DSL”) a defendant’s sentence was determined by the tier in which s/he fell. A defendant would fall within the upper tier only when the trial court determined that there were aggravating circumstances. The Supreme Court held that the middle tier, in which the defendant’s sentence would fall in the absence of such aggravating circumstances, was to be regarded as “the relevant statutory maximum.” Cunningham, at 868. Once again, the Court reiterated the applicable principles: “Because circumstances in aggravation are found by the judge and not the jury, and need only be established by a preponderance of the evidence, not beyond a reasonable doubt, ... the DSL violates Apprendi’s bright-line rule[.]” Id.

Apprendi, I emphasize, was not a statutory interpretation but a constitutional rule. The Court in Cunningham relied on Apprendi. The majority’s attempt to distinguish Cunningham in its footnote: “The challenge before us is a Fifth Amendment challenge to an advisory sentencing scheme rather than a Sixth Amendment challenge to a mandatory sentencing scheme,” Maj. op. at 565 n. 6, is nothing short of bizarre. Does the majority really believe that the Fourteenth Amendment’s incorporation of the Sixth Amendment, which was the basis for the Supreme Court’s constitutional opinion in Apprendi inter alia, does not apply equally to the Fifth Amendment?

The majority’s interpretation of Appren-di leads it to establish the rule that “[ojnce a jury has found a defendant guilty of each element of an offense beyond a reasonable doubt, he has been constitutionally deprived of his liberty and may be sentenced up to the maximum sentence authorized under the United States Code without additional findings beyond a reasonable doubt.” Maj. op. at 561.

The charge to which Grier pled guilty has a statutory maximum imprisonment *598term of 120 months, 18 U.S.C. § 924(a)(2), and no mandatory minimum. In the Pre-sentence Report (PSR), the Probation Officer, after determining that Grier “used or possessed the firearm in connection with another felony offense (aggravated assault),” PSR, para. 14, and therefore was subject to a four-level enhancement pursuant to then-applicable U.S.S.G. § 2K2.1(b)(5), calculated that the appropriate Guidelines range for Grier’s sentence (with a total offense level of 27 and a category V criminal history) was 120-150 months. The PSR also noted that without that four-level enhancement the appropriate sentencing range would be 84 to 105 months in prison.

At the sentencing hearing the District Court adopted the PSR, expressly using the preponderance-of-the-evidence standard in finding that Grier committed the “other felony offense,” i.e. “aggravated assault.” The Court made a downward departure under U.S.S.G. § 5K2.10 because the victim was partially responsible for the assault that was the basis for the enhancement, and sentenced Grier to 100 months in prison, with three years of supervised release.

According to the majority’s analysis, because Grier was subject to a statutory maximum of 120 months and the District Court sentenced him to 100 months imprisonment, Grier’s constitutional due process rights were not violated. However, the majority overlooks the fact that the District Court could have sentenced Grier at the low range of the advisory Guideline, i.e. to 84 months imprisonment. It is thus possible, and perhaps likely, that had the District Court recognized that the aggravated assault had to be proven beyond a reasonable doubt, it would have sentenced Grier to no more than 84 months imprisonment. It is evident that the PSR calculation, adopted by the sentencing judge, increased the sentence to which Grier was exposed.

In Apprendi the Court stated:

The differential in sentence between what Apprendi would have received without the finding of biased purpose and what he could receive with it is not, it is true, as extreme as the difference between a small fine and mandatory life imprisonment. Mullaney, 421 U.S., at 700, 95 S.Ct. 1881. But it can hardly be said that the potential doubling of one’s sentence — from 10 years to 20 — has no more than a nominal effect. Both in terms of absolute years behind bars, and because of the more severe stigma attached, the differential here is unquestionably of constitutional significance. When a judge’s finding based on a mere preponderance of the evidence authorizes an increase in the maximum punishment, it is appropriately characterized as “a tail which wags the dog of the substantive offense.” McMillan, All U.S., at 88, 106 S.Ct. 2411.

530 U.S. at 495, 120 S.Ct. 2348.

In this case, the District Court’s adoption of the preponderance-of-the-evidence standard, that the majority approves, and which exposed Grier to a year-and-a-half higher sentence than he may have otherwise received, had more than a “nominal” effect.

Moreover, the majority gives little or no effect to the Supreme Court’s decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), where the Court applied its earlier holding in Apprendi to a state’s indeterminate sentencing regime and held that any fact that increased the sentence must also be submitted to a jury, even though this sentence would fall within the absolute maximum allowed by the statute. 542 U.S. at 303-04, 124 S.Ct. 2531. Because Blakely held that “the ‘statutory maximum’ for Appren-*599di purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant,” 542 U.S. at 303, 124 S.Ct. 2531 (emphasis in original), any enhancement based on additional facts, even if the ultimate sentence is within the statutory range, as in Grier’s case, violates both Apprendi and Blakely. Once again the Cunningham opinion speaks definitively to this issue. The Court reprised the facts in Blakely. Blakely had been convicted of second-degree kidnapping with a firearm, a class B felony under Washington law. Although Blakely was sentenced to 90 months’ imprisonment, well within the overall statutory maximum of ten years for a class B felony, the Court held that the Washington State sentencing scheme violated the Sixth Amendment because the trial court could exceed the “standard range” of 49 to 53 months for “substantial and compelling reasons justifying an exceptional sentence.” Cunningham, at 864 (internal citation and quotation omitted). As explained in Cunningham, “[t]he judge could not have sentenced Blakely above the standard range without finding the additional fact of deliberate cruelty. Consequently, that fact was subject to the Sixth Amendment’s jury-trial guarantee. [Blakely,] 542 U.S. at 304-314, 124 S.Ct. 2531. It did not matter, we explained, that Blakely’s sentence, though outside the standard range, ivas within the lO^year maximum for Class B felonies[.]” Id. at 864 (emphasis added). Thus the fact that the majority deems dispositive in this case, that Grier’s sentence did not exceed the statutory maximum, is effectively repudiated by Cunningham.

Throughout its opinion the majority focuses on the language in the Booker remedial opinion, not on the Booker constitutional opinion. The Booker remedial opinion, authored by Justice Breyer, is addressed solely to the manner in which the requirements of the Booker constitutional opinion can be met. As the majority recognizes; the Booker Court’s holding is limited to an analysis of the defendant’s Sixth Amendment right to a jury trial. Booker offered no discussion of the Fifth Amendment, and to the extent that making the Guidelines advisory obviated the constitutional concerns raised in that case, it must be noted that there is a clear distinction to be drawn between Fifth and Sixth Amendment guarantees; the fact that rendering the Guidelines advisory remedied Sixth Amendment violations has little bearing on Fifth Amendment considerations. The issue before this' court is whether, under the now-advisory Guidelines, the enhancement based on a judicial finding of fact (the commission of a separate felony) by the preponderance of evidence violated Grier’s due process rights.

The majority opinion can be read to hold that as long as the sentence imposed is reasonable and within the statutory maximum, there is no constitutional issue. But nothing in the Booker remedial opinion, which adopts reasonableness as the standard for appellate review of the sentence imposed by a district court, suggests that “reasonableness” can be substituted for the constitutional requirement of a finding beyond a reasonable doubt. In any event, none of the cases cited by the majority is binding on this court.45 On the other *600hand, we are bound by the Supreme Court’s decision in Cunningham where the Court made short shrift of the California Supreme Court’s attempt “to rescue the DSL’s judicial factfinding authority by typing it simply a reasonableness constraint, equivalent to the constraint operative in the federal system post-Booker.” Cunningham, at 870. The Court stated, “Reasonableness, however, is not, as [the California Supreme Court] would have it, the touchstone of Sixth Amendment analysis. The reasonableness requirement of Booker anticipated for the federal system operates within the Sixth Amendment constraints delineated in our precedent, not as a substitute for those constraints.” Id.

Finally, the majority derides the suggestion that because the aggravated assault constitutes a separate offense, it is an element of a crime and therefore requires that the court make a finding of the commission of that offense beyond a reasonable doubt. See Maj. op. at 567-68. Once again the majority ignores the holding in Apprendi where the Supreme Court’s decision was based on the fact that the enhancement to Apprendi’s crime for possession of a firearm for an unlawful purpose was based on “a separate statute,” the hate crime law. Apprendi, 530 U.S. at 468, 120 S.Ct. 2848. The majority’s statement that “[f]acts relevant to application of the Guidelines — whether or not they constitute a ‘separate offense’,” do not constitute “ ‘elements’ of a ‘crime’,” and do not implicate the right to “proof beyond a reasonable doubt,” Maj. op. at 568-69, simply wipes away the entire holding of Apprendi.

In summary, not one of the reasons given by the majority for its holding withstands analysis. With no precedent and no persuasive rationale for its discard of the beyond-a-reasonable-doubt standard, the majority’s decision represents a regrettable erosion of a criminal defendant’s constitutional right to due process, an erosion that I can only hope will be of short duration.46

III.

Grier’s second argument on appeal is that the record does not support a finding that he committed an aggravated assault, regardless of which standard of proof is used.47 Although I agree with the majority that we must review particular factual determinations made by the District Court in the context of sentencing for clear error, I dissent from the majority’s determination to remand this case for resentencing because the majority persists in its approval of the enhancement. Instead, I would remand to require the District Court to resentence without any enhancement based on the District Court’s determination that Grier committed an aggravated assault.

Even if the majority were convincing that the appropriate standard of proof is preponderance of the evidence, the District Court clearly erred in finding that Grier committed an aggravated assault *601which was the basis for the sentencing enhancement. United States v. Gibbs, 190 F.3d 188, 197 (3d Cir.1999). In Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), the Supreme Court spoke emphatically on the type and quantum of evidence required before a prior crime may be used as a predicate offense. Shepard (just as Grier in this case) had pled guilty to being a felon in possession of a firearm, i.e. the offense of conviction. The Government sought to enhance his sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”), applicable to, inter alia, persons who had three prior convictions for violent felonies. Some fifteen years earlier, in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), the Court had decided that the only burglary that was a violent felony under the ACCA was generic burglary. Shepard, unlike Taylor, had not been tried for burglary but had pled guilty. There was no written plea agreement or transcript of plea colloquy, and he had not assented to any explicit factual finding by the trial judge. Because the offenses charged against Shepard were broader than generic burglary, the Court of Appeals held that the police reports may count as “sufficiently reliable evidence” to determine the nature of the prior crime. Shepard, 544 U.S. at 18, 125 S.Ct. 1254 (internal citation and quotation omitted). The Supreme Court reversed.

In considering what would constitute an adequate judicial record of the prior crime, the Court referred to Taylor where the Court held that the qualifying “burglary” could be proven only by either a statutory definition substantially corresponding to generic burglary or by showing that the charging documents and jury instructions required the jury to find all the elements of generic burglary. Taylor, 495 U.S. at 602, 110 S.Ct. 2143. The Shepard Court added that in cases without a jury the prior crime could be evidenced by a bench-trial judge’s formal rulings of law and findings of fact and in cases disposed of by plea agreements, by a “statement of factual basis for the charge, ... shown by a transcript of plea colloquy or by written plea agreement presented to the court, or by a record of comparable findings of fact adopted by the defendant upon entering the plea.” Shepard, 544 U.S. at 20, 125 S.Ct. 1254. The Court rejected the Government’s argument that it should expand the evidence by considering a police report submitted to a local court as grounds for issuing a complaint. That, according to Shepard, would not satisfy the necessary certainty of the record. The opinion stresses throughout the need for certainty as to the basis for the predicate conviction.

The Court stated that because there was no plea agreement or recorded colloquy in which Shepard admitted the fact at issue,

the sentencing judge considering the ACCA enhancement would (on the Government’s view) make a disputed finding of fact about what the defendant and state judge must have understood as the factual basis of the prior plea, and the dispute raises the concern underlying Jones and Apprendi: the Sixth and Fourteenth Amendments guarantee a jury standing between a defendant and the power of the state, and they guarantee a jury’s finding of any disputed fact essential to increase the ceiling of a potential sentence.

Id. at 25, 125 S.Ct. 1254.

If the record in Shepard, where the defendant had pled guilty to the offense which the Government sought to use as an enhancement, was an insufficient basis on which to hinge the predicate crime, how can the majority possibly base Grier’s enhancement on commission of an offense *602(aggravated assault) for which he was never charged, which he never admitted, and on which he was never tried? Surely, the aggravated assault that was the basis of Grier’s sentencing enhancement is the equivalent of the predicate crimes under the ACCA with which Shepard was concerned. And, Shepard also confirms the significance of my focus on the standard of proof of the separate crime, a focus that is the subject of the majority’s scorn.

There is no basis under Pennsylvania law to levy on Grier a charge of aggravated assault and no basis in the evidence to make a finding that Grier committed that offense. The evidence at the sentencing hearing consisted only of the testimony from Juan Navarro, the brother of Grier’s girlfriend, with whom Grier engaged in the altercation that constituted the basis for the District Court’s finding of aggravated assault. Navarro testified that he [Navarro] “swung first,” i.e., that he was the first aggressor in the altercation. App. at 51; Tr. at 10, 1. 1. He testified that he and Grier then “started rolling around on the ground.” App. at 56. Navarro testified that the gun initially went off while they were struggling on the ground:

We started fighting. And the people surrounding us was [sic] saying that he had a gun and all that, and they tried to get the gun from him and all. And then a shot fired. Then we just separated. And then after that, he just pointed the gun at me, and then it went — I started — I kept going after him. And then people was just holding me back, and then he went from there where he was gonna go, and then stopped. The fight just stopped right there.

Id. at 51; Tr. at 10,1.13.

Navarro further testified on cross-examination that he did not know how the gun had gotten out of Grier’s pocket: “I don’t know if the gun fell out or whatever. People was telling me that he was taking the gun out. And from there, that’s when everybody tried to get the gun away from him.” App. at 57; Tr. at 16,1. 3.

Navarro testified that after the two had separated, Grier pointed the gun at him, but Navarro “was trying to go back at him” when onlookers held him back. At that point, Grier “shot in the air.” App. at 58; Tr. at 17, 1. 18. After that, Navarro testified that they “both walked away. He went his way and I went my way.” App. at 59; Tr. at 18,1.13.

Under Pennsylvania law, a person commits an aggravated assault when, inter alia, s/he “attempts to cause or intentionally or knowingly causes bodily injury to another with a deadly weapon.” 18 Pa. Cons.Stat. § 2702(a)(4). In this case, there is no evidence that Grier had the requisite intention and the evidence does not show that he ever fired the gun at Navarro. The first time the gun went off, Grier and Navarro were engaged in a struggle on the ground, while bystanders were also trying to wrestle the gun away from Grier. Therefore, there was no evidence to support a charge of aggravated assault.

In contrast, “[s]imple assault by physical menace” is defined under Pennsylvania law as an “attempt by physical menace to put another in fear of imminent serious bodily injury,” 18 Pa. Cons.Stat. § 2701(a)(3), and includes pointing a gun at someone without firing it. The District Court interrupted the District Attorney’s statement that Grier pointed the firearm at Navarro by saying, “I don’t think there’s any testimony he pointed it at him.” App. at 68. Even Navarro’s testimony that Grier pointed the gun at him never suggested that Grier attempted to put him in fear of imminent serious bodily injury and he stated immediately thereafter that Grier fired the gun in the air in order to end the fight. He *603obviously so understood it, and the District Court did not state otherwise.

At most, the facts on the record support a charge of simple assault by mutual consent, which, under Pennsylvania law, is only punishable by up to one year in prison. See 18 Pa. Cons.Stat. §§ 2701(b)(1), 1104(3). Simple assault by mutual consent cannot support application of a four-level enhancement under former U.S.S.G. § 2K2.1 (b)(5)48 because it does not meet the requirement for a “felony offense,” which is defined as “any offense (federal, state, or local) punishable by imprisonment for a term exceeding one year, whether or not a criminal charge was brought, or conviction obtained.” U.S.S.G. § 2K2.1 cmt. 4 (2005).

The Pennsylvania statute defines aggravated assault in the alternative — the defendant must have attempted to or intentionally caused bodily injury with a deadly weapon. There is no suggestion that Grier actually injured Navarro with the gun. Therefore, the District Court’s conclusion that Grier committed an aggravated assault by a preponderance of the evidence must have been based on the finding that it was more likely than not that Grier attempted to cause bodily injury to Navarro with the gun. See 18 Pa. Cons.Stat. § 2702(a)(4). Yet the majority chooses to ignore the copious evidence that Navarro was the aggressor and that Grier was acting only in self-defense. Navarro’s testimony confirms that when Grier stepped away from Navarro and fired a shot in the air he was seeking to end the fight. App. at 59. Firing in the air is not a mysterious gesture as the majority chooses to portray it, but can fairly be described as a universally understood gesture of detente or warning. Navarro so understood it. In fact, state charges filed against Grier after the incident were dismissed.

The majority states:

It is arguable — and is argued by Grier on appeal- — -that the record shows that the gun accidentally dropped from his pocket during the altercation, and that his subsequent actions were intended merely to dissuade Navarro from continuing the fight. But the District Court found that Grier intentionally pulled the gun from his clothing and, while the two men were on the ground, fired a shot in an attempt to harm or kill Navarro. He thereafter rose and aimed the gun once again at Navarro but, for whatever reason, decided to fire the weapon skyward and withdraw from the fight.

See Maj. op. at 570. The District Court never found Grier “fired a shot in an attempt to harm or kill Navarro.” That is a figment of the majority’s imagination.

By stating that it is “arguable” that the record shows that the gun accidentally dropped from Grier’s pocket, the majority in effect concedes that the District Court erred in finding, even by a preponderance of the evidence, that Grier committed an aggravated assault. The only basis for the sentence imposed by the District Court was. its statement that it “adopts the pre-sentence report.” App. at 80. I submit that after Shepard, a presentence report without more cannot be the basis for a finding of an offense that is the predicate for a sentence enhancement.

The District Court itself acknowledged Navarro’s responsibility for the altercation by departing downward two levels due to the victim’s partial responsibility under U.S.S.G. § 5K2.10. If the District Court believed that Navarro was responsible for *604the altercation, it should have given closer consideration to Grier’s claim of self-defense, which is a complete defense to aggravated assault under Pennsylvania law, and which, as Grier argued at sentencing, could also reduce the predicate offense to simple assault by mutual consent. See 18 Pa. Cons.Stat. § 2701(b)(1). The majority ignores the fact that under Pennsylvania law simply pointing a gun at someone without firing it is not an aggravated assault, but a simple assault by physical menace, to which the mutual consent exception applies. See Commonwealth v. Matthews, 870 A.2d 924, 929 (Pa.Super.2005); 18 Pa. Cons.Stat. § 2701(a)(3).

The majority concludes that the District Court did not err in finding that Grier had committed an aggravated assault based on the barest evidence to support his charge in the record. Although the majority actually adopts the clear error standard, which requires us to reverse a District Court’s finding of fact as clearly erroneous “ ‘when although there is evidence to support it, [we] are left with the definite and firm conviction that a mistake has been committed,’ ” Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Trust for S. Cal., 508 U.S. 602, 622, 113 S.Ct. 2264, 124 L.Ed.2d 539 (1993) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)), the majority fails to apply this standard to the facts on record.

Its statement that “[t]he precise circumstances of the fight are matters of reasonable speculation,” Maj. op. at 570, is inconsistent with its affirmation of the District Court’s finding that Grier committed an aggravated assault, even by its own standard using a preponderance of the evidence. I would remand to the District Court for resentencing without the four point enhancement for commission of another offense.

. The majority does not deign to respond to Judge Ambro's devastating attack on its reasoning in his concurring opinion. I believe that my references to Cunningham in my response to the majority apply equally to the concurring opinion’s reference to that case.

. Grier also alleges that we may review his sentence because it is "unreasonable.” A sentence imposed in violation of Grier's Fifth Amendment rights would be imposed in violation of the law and, therefore, unreasonable. United States v. Cooper, 437 F.3d 324, 327-28 (3d Cir.2006).

. "The Commission believes that use of a preponderance of the evidence standard is appropriate to meet due process requirements and policy concerns in resolving disputes regarding application of the guidelines to the facts of a case." U.S. Sentencing Guidelines Manual § 6A1.3 cmt. (2006).

. The “constitutional doubt rule” referred to in Jones instructs: "the rule, repeatedly affirmed, that 'where a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter.' ” Jones, 526 U.S. at 239, 119 S.Ct. 1215 (quoting Del. & Hudson Co., 213 U.S. at 408, 29 S.Ct. 527).

. Any suggestion by the majority and the concurrence that Jones is no longer viable or relevant following Booker is belied by the prominent references to its holding in the opinion in Shepard v. United States, 544 U.S. 13, 24-26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). I will discuss Shepard in more detail infra.

. The finding by a preponderance of the evidence that Grier had committed an aggravated assault is in sharp contrast to Almenda-rez-Torres, where the underlying convictions followed findings made beyond a reasonable doubt.

. Many of the cases cited by the majority concern findings relating to sentencing facts, which, as Booker held, have historically been left to the sentencing judge’s discretion and which Apprendi held can be established by a preponderance of the evidence. See, e.g., United States v. Okai, 454 F.3d 848, 851-52 (8th Cir.2006); United States v. Dare, 425 F.3d 634, 642 (9th Cir.2005); Cirilo-Munoz v. *600United States, 404 F.3d 527, 532-33 (1st Cir.2005).

. Appellant and the amici have included in their briefs various broad challenges to the Sentencing Guidelines and cases interpreting them that go far beyond the issue presented in this case. I have not considered nor discussed them because they may deflect attention from the important, albeit narrow, constitutional issue before us.

. Grier also contends that the District Court erred by failing to articulate its consideration of the factors set forth in 18 U.S.C. § 3553(a) in determining Grier’s sentence, making the sentence unreasonable. Because I distinguish between sentencing factors, the subject of § 3553, which are not at issue here, and offense-defining factors which are the subject of this dissent, I need not discuss Grier's contention.

. In the November 2006 edition of the Guidelines, this provision now appears at § 2K2.1 (b)(6), with an analogous and corresponding application note at 14(C).