2006 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-7-2006

USA v. Grier

Precedential or Non-Precedential: Precedential

Docket No. 05-1698

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Recommended Citation

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*

This appeal was argued before the panel of Judges

Sloviter, Fisher and Rosenn. The coram was reconstituted to

include Chief Judge Scirica after the death of Judge Rosenn.

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 05-1698

 

UNITED STATES OF AMERICA

 v.

SEAN MICHAEL GRIER,

 Appellant

 

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 03-cr-00284)

District Judge: Honorable Sylvia H. Rambo

 

Argued October 25, 2005

Before: SCIRICA,* Chief Judge, SLOVITER

and FISHER, Circuit Judges.
2

(Filed June 6, 2006)

Ronald A. Krauss (Argued)

Office of Federal Public Defender

100 Chestnut Street, Suite 306

Harrisburg, PA 17101

Attorney for Appellant

Christian A. Fisanick (Argued)

Office of United States Attorney

235 North Washington Avenue, Suite 311

P.O. Box 309

Scranton, PA 18501

Theodore B. Smith, III

Eric Pfisterer

Kimberly A. Kelly

Office of United States Attorney

228 Walnut Street

220 Federal Building and Courthouse

P.O. Box 11754

Harrisburg, PA 17108

Attorneys for Appellee

 

OPINION OF THE COURT

 
3

FISHER, Circuit Judge.

The Supreme Court held in United States v. Booker, 543

U.S. 220 (2005), that facts relevant to the advisory United States

Sentencing Guidelines do not implicate the constitutional right

to trial by jury. We now confirm that these facts likewise do not

implicate the constitutional right to proof beyond a reasonable

doubt.

I.

It all started with a lost bicycle. The bike was owned by

Juan Navarro but had been commandeered by his sister. She

was holding it, with the support of her boyfriend, Sean Michael

Grier, as a form of security against Navarro’s promise to pay a

cable bill. Navarro did not approve of this arrangement.

He confronted Grier and demanded the bike. Grier

refused. Navarro said: “[T]here’s gonna be some problems if

I don’t have my bike back.” Grier responded: “[L]et the

problem be right here and now.”

Navarro swung at Grier. The punch did not connect, and

the two men fell struggling to the ground. Several witnesses

warned Navarro that Grier had a gun. A shot was fired. The

two men separated, with Grier holding the gun. Neither had

been struck by the bullet or sustained serious injury.

Grier pointed the gun at Navarro. Navarro attempted to

rush at Grier but was held back by other individuals. Grier
1

Pennsylvania law defines aggravated assault as follows:

A person is guilty of aggravated assault if he:

(1) attempts to cause serious bodily

injury to another, or causes such

injury intentionally, knowingly or

recklessly under circumstances

manifesting extreme indifference to

the value of human life; [or]

. . . . 

(4) attempts to cause or

intentionally or knowingly causes

4

pointed the gun upward and fired a single shot. Both men then

left the scene. Grier discarded the firearm in a nearby trash can.

A police investigation ensued. Officers found the

discarded gun, and a background check revealed that it had been

stolen. Grier was soon arrested on state charges of aggravated

assault, receiving stolen property, and unlawful possession of a

firearm. These counts were dismissed in August 2003.

Grier was subsequently charged by federal indictment

with possession of a firearm by a convicted felon, in violation of

18 U.S.C. § 922(g)(1), and possession of a stolen firearm, in

violation of 18 U.S.C. § 922(j). He pled guilty to the first count;

the second count was dismissed pursuant to a plea agreement.

A presentence report was prepared. It found that Grier’s

conduct during the altercation with Navarro constituted the

felony offense of aggravated assault under Pennsylvania law,

see 18 Pa. Cons. Stat. § 2702,1

 and that the offense had been
bodily injury to another with a

deadly weapon . . . . 

18 Pa. Cons. Stat. § 2702(a).

5

committed in connection with the crime of conviction (unlawful

possession of a firearm). This finding resulted in a four-level

enhancement in Grier’s offense level under the United States

Sentencing Guidelines, raising it from 23 to 27, see U.S.

Sentencing Guidelines Manual § 2K2.1(b)(5), and a fifty percent

increase in the recommended imprisonment range, raising it

from 84 to 105 months to 120 to 150 months, see id. ch. 5, pt. A.

The final Guidelines range, in light of the statutory maximum

sentence of ten years, see 18 U.S.C. § 924(a)(2), was 120

months. See U.S. Sentencing Guidelines Manual § 5G1.1.

Grier objected to the four-level enhancement, and a

sentencing hearing was held on February 25, 2005. The parties

argued briefly over the correct burden of proof. Defense

counsel claimed that the reasonable-doubt standard should apply

while counsel for the government maintained that a

preponderance standard should govern. The district judge

agreed with the government: “I believe that the standard

currently is preponderance, [and] until [I have] something more

definitive from the Court of Appeals, it’s what I’ll use.”

The only witness to testify at the hearing was Navarro.

He described the altercation and stated that he had not possessed

a firearm or any other weapon on his person at the time. He

admitted, however, that he had not seen Grier “pull” the gun

from his clothing:
2

Pennsylvania law defines simple assault, including the

exception for mutual consent, as follows:

(a) Offense defined.–A person is guilty of assault

if he:

(1) attempts to cause or

intentionally, knowingly or

recklessly causes bodily injury to

another;

(2) negligently causes bodily

injury to another with a deadly

weapon; [or]

(3) attempts by physical menace to

put another in fear of imminent

serious bodily injury . . . .

(b) Grading.–Simple assault is a misdemeanor of

the second degree unless committed . . . in a fight

or scuffle entered into by mutual consent, in

which case it is a misdemeanor of the third

6

I don’t know if the gun fell out [of Grier’s

pockets] 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.

Defense counsel argued that the enhancement should not

apply because Grier had acted in self-defense. She also asserted

that, under Pennsylvania law, Grier was guilty not of aggravated

assault but of “simple assault by mutual consent,” a lessergraded version of simple assault punishable by imprisonment for

one year or less. See 18 Pa. Cons. Stat. §§ 1104, 2701.2

 This
degree . . . .

18 Pa. Cons. Stat. § 2701.

7

crime is not considered a “felony” under the Guidelines, see

U.S. Sentencing Guidelines Manual § 2K2.1 cmt. n.1, and

would not support the enhancement.

The District Court adopted the presentence report,

including the finding of aggravated assault and concomitant

enhancement. It also granted a downward departure of two

offense levels “in light of [Navarro’s] conduct, which was partly

responsible for the four[-]point enhancement.” With this

departure, the range of imprisonment prescribed by the

Guidelines was reduced to 100 to 120 months.

The District Court recognized that the Guidelines were

advisory but nevertheless imposed a term of imprisonment of

100 months, within the recommended range. It justified this

sentence in a single statement: “The Court believes that 100

months is reasonable in view of the considerations of [18 U.S.C.

§] 3553(a).” Defense counsel did not object to the District

Court’s explanation for the sentence.

This timely appeal followed. Grier argues that the

District Court erred in applying a preponderance standard to

facts relevant to the four-level enhancement, in finding that he

had committed aggravated assault under Pennsylvania law, and

in imposing sentence without fully articulating its consideration

of the factors under 18 U.S.C. § 3553(a). We have jurisdiction

over these claims under 18 U.S.C. § 3742(a) and 28 U.S.C.
8

§ 1291. See United States v. Cooper, 437 F.3d 324, 327-28 &

n.4 (3d Cir. 2006).

II.

There is no doubt that Booker, by rendering the United

States Sentencing Guidelines advisory rather than mandatory,

“brought about sweeping changes in the realm of federal

sentencing.” United States v. Davis, 407 F.3d 162, 163 (3d Cir.

2005). But there is every reason to believe that the Supreme

Court intended that the practices that have guided us and other

courts in the twenty years since the Guidelines were first

promulgated would continue to govern sentencing in the federal

courts.

Under an advisory Guidelines scheme, district courts

should continue to make factual findings by a preponderance of

the evidence and courts of appeals should continue to review

those findings for clear error. The only change in the equation

is that, at the end of the day, the district court is not bound by

the recommended Guidelines range and the court of appeals

must decide whether the final sentence is “reasonable.”

A.

The primary issue in this case is whether the Due Process

Clause requires facts relevant to enhancements under the United

States Sentencing Guidelines, particularly those that constitute

a “separate offense” under governing law, to be proved beyond

a reasonable doubt. The Supreme Court did not reach this issue

in Booker, see 543 U.S. at 259, and we declined to address it in
9

United States v. Cooper, 437 F.3d 324 (3d Cir. 2006), see id. at

330 & n.7. Nevertheless, we believe that the discussion in

Booker regarding the Jury Trial Clause of the Sixth Amendment

applies with equal force to the Due Process Clause of the Fifth

Amendment. See Apprendi v. New Jersey, 530 U.S. 466, 484

(2000) (discussing these “associated” provisions). That a

defendant does not enjoy the right to a jury trial under Booker

ineluctably means that he or she does not enjoy the right to

proof beyond a reasonable doubt.

1.

The constitutional guarantees of “trial . . . by an impartial

jury,” U.S. Const. amend. VI, and “due process of law,” U.S.

Const. amend. V, stand as a bulwark of individual liberty. They

interpose between the legislature and the court the community’s

own judgment as to the existence of a crime. Only if a jury of

an individual’s peers concludes beyond a reasonable doubt that

he or she committed each element of the charged offense, as

defined by the legislature, may the court impose punishment.

Booker, 543 U.S. at 230 (citing United States v. Gaudin, 515

U.S. 506, 511 (1995)).

This principle is rooted in common law considerations of

fundamental fairness. See, e.g., Blakely v. Washington, 542 U.S.

296, 301-02, 305-07, 311-12 (2004); Apprendi, 530 U.S. at 476-

77; Harris v. United States, 536 U.S. 545, 556-68 (2002)

(plurality opinion). Individuals must be provided notice of the

consequences of their conduct. They must be informed of the

nature of illegal acts, through legislative definition of the

elements of punishable crimes, and of the possible sentences for
10

those offenses upon conviction. See Blakely, 542 U.S. at 301-

02, 306-07, 311-12; Apprendi, 530 U.S. at 476-77, 489-94;

Harris, 536 U.S. at 556-68. An individual who is provided such

notice and is nevertheless found by a jury beyond a reasonable

doubt to have engaged in illegal conduct has no grounds to

complain when the maximum punishment authorized by the

legislature is meted out by a judge. See Blakely, 542 U.S. at

304-05, 309; Harris, 536 U.S. at 556-68.

Individuals have the right under the Fifth and Sixth

Amendments to demand that each and every element of the

alleged crime be submitted to a jury and proved beyond a

reasonable doubt before sentence is imposed. It follows, then,

that the fundamental question for these purposes is what facts

constitute the “elements” of a “crime.”

The answer was provided in Apprendi v. New Jersey, 530

U.S. 466 (2000): The facts constituting the elements of a crime

are those that increase the maximum punishment to which the

defendant is exposed under governing law. Id. at 490. This

conclusion was based on a simple syllogism. A crime is defined

as conduct that is punishable by the state. Conduct is punishable

by the state when it exposes the individual to new or additional

penalties. Therefore, any conduct that exposes an individual to

punishment or increases the maximum punishment to which he

or she is otherwise exposed must be deemed a crime. The

predicate facts of such conduct constitute the “elements” of the

“crime.” Id. at 483 & n.10, 485-86, 490, 493-94 & nn.18-19

(citing Jones v. United States, 526 U.S. 227, 244-48 (1999);

Mullaney v. Wilbur, 421 U.S. 684, 697-98 (1975)); see also id.

at 500-01 (Thomas, J., concurring).
11

It is to these facts, and to these facts alone, that the rights

to a jury trial and proof beyond a reasonable doubt attach. “The

Fifth and Sixth Amendments ensure that the defendant ‘will

never get more punishment than he bargained for when he did

the crime,’ but they do not promise that he will receive

‘anything less’ than that.” Harris, 536 U.S. at 556-68 (quoting

Apprendi, 530 U.S. at 498 (Scalia, J., concurring)). Once an

individual has been convicted by a jury beyond a reasonable

doubt of the predicate facts of illegal conduct, triggering a

statutory maximum penalty, a court may impose any sentence on

the individual up to that maximum. Id. Judicial factfinding in

the course of selecting a sentence within the permissible range

does not implicate or offend the Fifth and Sixth Amendment

rights to a jury trial and proof beyond a reasonable doubt.

Blakely, 542 U.S. at 309; Harris, 536 U.S. at 556-68; Apprendi,

530 U.S. at 481-82 (citing Williams v. New York, 337 U.S. 241,

242-47 (1949)); McMillan v. Pennsylvania, 477 U.S. 79, 89-90

(1986).

2.

The decision in Booker instantiates these principles. In

Booker, a jury found the defendant guilty of possession with

intent to distribute at least fifty grams of cocaine base, an

offense that carried a maximum sentence of life imprisonment

under the United States Code. 543 U.S. at 227 (citing 21 U.S.C.

§ 841(a)(1), (b)(1)(a)(iii)). The United States Sentencing

Guidelines, however, prescribed a base imprisonment range of

210 to 262 months. Id. (citing U.S. Sentencing Guidelines

Manual §§ 2D1.1(c)(4), 4A1.1). During a sentencing hearing,

the trial judge found by a preponderance of the evidence that the
12

defendant had possessed an additional 566 grams of crack and

had obstructed justice. Id. These findings increased the

Guidelines imprisonment range to 360 months to life. Id. The

judge then imposed a sentence commensurate with this range, of

thirty years. Id.

The Supreme Court reversed. Of central importance to

its conclusion was the mandatory nature of the Guidelines. Id.

at 233-35. The Sentencing Reform Act required the district

judge to impose a sentence within the “base” range

recommended by the Guidelines, established solely by the facts

of conviction, unless certain enumerated circumstances were

found to be present. Id. (citing 18 U.S.C. § 3553(b)). In other

words, upon conviction by a jury, the maximum punishment to

which the individual was exposed was the highest point in the

base range prescribed by the Guidelines. Id. The judge lacked

authority to impose a higher sentence in the absence of

additional findings of fact. Id.

These additional facts, under the reasoning of Apprendi,

constitute “elements” of a “crime.” By raising the

recommended Guidelines range, they authorized the district

judge to impose a higher sentence than would be permissible

under the Sentencing Reform Act based solely on the facts of

conviction. Id. They increased the maximum sentence to which

the defendant would otherwise be exposed upon conviction by

a jury. Id. These facts are therefore properly classified as

elements of a crime, subject to the rights to a jury trial and proof

beyond a reasonable doubt. Id. (citing Apprendi, 530 U.S. at

481).
13

The final sentence imposed in Booker was nearly ten

years more than the base range prescribed by the Guidelines. Id.

The range had been increased based on findings made by the

sentencing judge, without submission to a jury. Id. This

violated the defendant’s rights under the Sixth Amendment, as

defined in Apprendi.

This conclusion not only necessitated reversal of the

defendant’s sentence; it cast doubt on the constitutionality of the

federal sentencing regime as a whole. See id. The Guidelines

require that all facts relevant to sentencing be found by a judge

based on information presented during a post-trial hearing. Id.

There is no provision for a jury to make these determinations,

nor any reasonable means to effect this result within the existing

structure. Trial by jury is inherently incompatible with the

Guidelines scheme. Id.

The Court resolved this problem by returning to the basis

of its holding: that the constitutional infirmity of the Guidelines

was attributable to their mandatory application under the

Sentencing Reform Act. All members of the Court agreed that,

if the Guidelines were merely advisory, the Sixth Amendment

problem would fall away. Id. at 259. Facts relevant to

enhancements under the Guidelines would no longer increase

the maximum punishment to which the defendant is exposed,

but would simply inform the judge’s discretion as to the

appropriate sentence. Id. These facts would then not be deemed

“elements” of a “crime” and would not trigger the rights

recognized in Apprendi. Id.
3

Section 3553(b)(1) provided, in pertinent part, as

follows:

[T]he court shall impose a sentence of the kind,

and within the range, referred to in subsection

(a)(4) [prescribed by the United States Sentencing

Guidelines] unless the court finds that there exists

an aggravating or mitigating circumstance of a

kind, or to a degree, not adequately taken into

consideration by the Sentencing Commission in

formulating the guidelines that should result in a

sentence different from that described.

18 U.S.C. § 3553(b)(1).

4

Section 3742(e) provided, in pertinent part, as follows:

Upon review of the record, the court of appeals

shall determine whether the sentence–

(1) was imposed in violation of law;

(2) was imposed as a result of an incorrect

application of the sentencing guidelines;

(3) is outside the applicable guideline

range, and . . . the sentence departs from

the applicable guideline range based on a

14

To achieve this result, the Court “sever[ed] and

excise[d]” two statutory provisions: “the provision that requires

sentencing courts to impose a sentence within the applicable

Guidelines range (in the absence of circumstances that justify a

departure), see 18 U.S.C. § 3553(b)(1),[3] and the provision that

sets forth standards of review on appeal, including de novo

review of departures from the applicable Guidelines range, see

[18 U.S.C.] § 3742(e).[4]” Booker, 543 U.S. at 259. The
factor that . . . does not advance the

objectives set forth in section

3553(a)(2)[,] . . . is not authorized under

section 3553(b)[, or] . . . is not justified by

the facts of the case; or . . . the sentence

departs to an unreasonable degree from the

applicable guidelines range, having regard

for the factors to be considered in

imposing a sentence[;] . . . or

(4) was imposed for an offense for which

there is no applicable sentencing guideline

and is plainly unreasonable.

The court of appeals shall give due regard to the

opportunity of the district court to judge the

credibility of the witnesses, and shall accept the

findings of fact of the district court unless they are

clearly erroneous and, except with respect to

determinations under subsection (3)(A) or (3)(B),

shall give due deference to the district court’s

application of the guidelines to the facts. With

respect to determinations under subsection (3)(A)

or (3)(B), the court of appeals shall review de

novo the district court’s application of the

guidelines to the facts.

18 U.S.C. § 3742(e).

15

excision of these provisions rendered the Guidelines advisory,

freeing the trial judge to impose any sentence permitted under

the United States Code regardless of the sentence recommended

by the Guidelines. Id. The maximum legislatively authorized

punishment to which the defendant is exposed was no longer the
16

maximum prescribed by the Guidelines; instead, it is the

maximum prescribed by the United States Code. Id. Therefore,

findings of fact relevant to the Guidelines need not be submitted

to a jury. Id.

The Court noted that the “remainder of the Act

‘function[s] independently.’” Id. (quoting Ala. Airlines, Inc. v.

Brock, 480 U.S. 678, 684 (1987)). District courts must still

conduct the full Guidelines analysis in every case. They must

still resolve disputed issues of fact and explain the basis for any

departures. The only change is that the final Guidelines range

does not bind the district court, but merely serves as one of a

number of factors to be considered in fashioning the ultimate

sentence. Id. at 259-60. Of course, for Sixth Amendment

purposes, this change makes all of the difference. See id.

3.

The Supreme Court in Booker did not address the

applicability of the right to proof beyond a reasonable doubt in

an advisory Guidelines system. This is easily explained: it had

no reason to do so. The question presented in Booker was

“[w]hether the Sixth Amendment is violated by the imposition

of an enhanced sentence under the United States Sentencing

Guidelines based on the sentencing judge’s determination of a

fact . . . that was not found by the jury or admitted by the

defendant.” Petition for a Writ of Certiorari, Booker, 543 U.S.

220 (No. 04-104). The absence of discussion of the Fifth

Amendment is not, as the dissent seems to believe, an implicit

recognition that the right to proof beyond a reasonable doubt
17

applies at sentencing. Rather, it simply reflects the limited

scope of the grant of certiorari.

There can be no question, in light of the holding of

Booker and the reasoning of Apprendi, that the right to proof

beyond a reasonable doubt does not apply to facts relevant to

enhancements under an advisory Guidelines regime. Like 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. The advisory

Guidelines do not have this effect. They require the district

judge to make findings of fact, but none of these alters the

judge’s final sentencing authority. Booker, 543 U.S. at 233,

259. They merely inform the judge’s broad discretion. Id.

The sole legislative restrictions on the judge’s sentencing

authority post-Booker are those found in the United States Code.

The Code defines crimes and prescribes maximum sentences.

It identifies the facts necessary to establish an offense and any

aggravating circumstances (e.g., significant drug quantity, use

of a firearm, injury to a victim) that increase the maximum

punishment. These facts must be established beyond a

reasonable doubt. Apprendi, 530 U.S. at 490. But, once these

facts are found, triggering the statutory maximum, the judge

may impose a sentence anywhere under that maximum without

constitutional qualm. Blakely, 542 U.S. at 309; Harris, 536 U.S.

at 556-68; Apprendi, 530 U.S. at 481-82; Williams, 337 U.S. at

242-47.
18

By excising the provisions of the United States Code

requiring mandatory application of the United States Sentencing

Guidelines, the Supreme Court in Booker altered the

constitutional impact of the Guidelines. None of the facts

relevant to enhancements or departures under the Guidelines can

increase the maximum punishment to which the defendant is

exposed. E.g., United States v. Tannis, 942 F.2d 196, 198 (3d

Cir. 1991); see also U.S. Sentencing Guidelines Manual

§ 5G1.1. The Due Process Clause thus affords no right to have

these facts proved beyond a reasonable doubt. Harris, 536 U.S.

at 558 (“Judicial factfinding in the course of selecting a sentence

within the authorized range does not implicate the . . .

reasonable-doubt component[] of the Fifth . . . Amendment[].”).

This holding accords with other decisions addressing the

issue. See, e.g., United States v. Cooper, 437 F.3d 324, 330 (3d

Cir. 2006); United States v. Vaughn, 430 F.3d 518, 525-26 (2d

Cir. 2005), cert. denied sub nom. Lindo v. United States, 126 S.

Ct. 1665 (2006); United States v. Morris, 429 F.3d 65, 72 (4th

Cir. 2005); United States v. Price, 418 F.3d 771, 788 (7th Cir.

2005); United States v. Magallanez, 408 F.3d 672, 684-85 (10th

Cir.), cert. denied, 126 S. Ct. 468 (2005); United States v.

Pirani, 406 F.3d 543, 551 n.4 (8th Cir.) (en banc), cert. denied,

126 S. Ct. 266 (2005); United States v. Yagar, 404 F.3d 967,

972 (6th Cir. 2005); United States v. Mares, 402 F.3d 511, 519

& n.6 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005); United

States v. Duncan, 400 F.3d 1297, 1304-05 (11th Cir.), cert.

denied, 126 S. Ct. 432 (2005).
19

4.

The dissent rejects the rationale of these decisions and

proposes a novel standard under which the right to proof beyond

a reasonable doubt would attach to facts relevant to the

Guidelines when those facts constitute a “separate offense.” It

finds support for this position in Jones v. United States, 526 U.S.

227 (1999), and Apprendi. This reliance is misplaced.

The question presented in Jones was whether a provision

of the federal carjacking statute raising the maximum penalty for

crimes involving “serious bodily injury” should be interpreted

as an element of the crime, to which the right to proof beyond a

reasonable doubt applies, or as a mere sentencing enhancement.

526 U.S. at 229. The Supreme Court found, based on

comparisons with other state and federal provisions defining

aggravated robbery and assault as separate offenses, that

“Congress probably intended serious bodily injury to be an

element defining an aggravated form of the crime.” Id. at 236.

On this basis, it held that the fact of “serious bodily injury” must

be submitted to a jury and proved beyond a reasonable doubt.

Id. at 232-33, 251-52.

Jones was a statutory interpretation case. The

comparison of the “serious bodily injury” provision to other,

separate offenses was merely a means of gauging Congress’s

probable intent. Id. at 232-36. It was not a statement of

constitutional doctrine and did not purport to base the right to

proof beyond a reasonable doubt on whether the facts at issue

constitute an independent crime. Id.
20

The only mention of constitutional rights in Jones is in a

subsidiary context, within a discussion of the interpretative

canon of avoidance. Id. at 239-40. The Supreme Court noted

that the “serious bodily injury” provision of the carjacking

statute increased the maximum punishment to which the

defendant was exposed and therefore likely implicated the

defendant’s rights to a jury trial and proof beyond a reasonable

doubt, regardless of whether the provision was intended to

operate as an “element” or an “enhancement.” Id. at 239-52.

The Court avoided the issue, however, by finding that Congress

anticipated that the provision would stand as a separate

“element,” to which these rights undisputedly applied. Id. at

251-52.

There is no question of statutory interpretation here. The

Guidelines were clearly intended by Congress to operate as

sentencing enhancements, not as elements of a crime. The lack

of clarity regarding congressional intent that compelled the

Supreme Court in Jones to examine whether “serious bodily

injury” could be analogized to an independent crime is simply

not present here.

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

maximum punishment to which the defendant is exposed. 530

U.S. at 490. This standard is not based upon the legislature’s

definition of a fact as an “element” or “enhancement,” id. at

494, or upon a formalistic “multifactor parsing of statutes,” id.

at 501 (Thomas, J., concurring). Nor does it depend on whether

the facts in question can be described as a “separate offense,” a
21

concept that appears nowhere in Supreme Court jurisprudence

in this field except in the statutory discussion of Jones. 526 U.S.

at 232-36. The sole question under Apprendi is whether the

facts at issue increase the maximum punishment to which the

defendant is exposed. 530 U.S. at 494 (“[T]he relevant inquiry

is one not of form, but of effect – does the required finding

expose the defendant to a greater punishment than that

authorized by the jury’s guilty verdict?”).

Facts relevant to application of the Guidelines – whether

or not they constitute a “separate offense” – do not have this

effect. E.g., Tannis, 942 F.2d at 198; see also U.S. Sentencing

Guidelines Manual § 5G1.1. They inform the district court’s

discretion without limiting its authority. They therefore should

not be treated as “elements” of a “crime” under the rationale of

Apprendi and do not implicate the rights to a jury trial and proof

beyond a reasonable doubt. 530 U.S. at 490, 494.

5.

The District Court in this case concluded that the burden

of proof for facts relevant to sentencing was preponderance of

the evidence. This standard is suggested by the Guidelines, see

U.S. Sentencing Guidelines Manual § 6A1.3 cmt., is not

precluded by the Fifth or Sixth Amendments, see Booker, 543

U.S. at 259, and has been approved by this Court, see, e.g.,

United States v. Mobley, 956 F.2d 450, 455 (3d Cir. 1992).

We held in United States v. Kikumura, 918 F.2d 1084 (3d

Cir. 1990), that certain sentencing enhancements under the

Guidelines – those that significantly increase the recommended
22

sentence and “can fairly be characterized as ‘a tail which wags

the dog of the substantive offense’” – must be proved by “clear

and convincing evidence.” Id. at 1100-01 (quoting McMillan,

477 U.S. at 88). The jurisprudential basis of this holding,

grounded in dictum from McMillan v. Pennsylvania, 477 U.S.

79 (1986), has since been disavowed by the Supreme Court, see

Blakely, 542 U.S. at 307-08 (citing McMillan, 477 U.S. at 88),

and plainly conflicts with the principles underlying Booker and

its predecessors, see 543 U.S. at 259-60; see also Apprendi, 530

U.S. at 481-82 (noting that factfinding in the course of selecting

a sentence within the statutory range does not implicate the

rights to a jury trial and proof beyond a reasonable doubt). We

will therefore take the opportunity to overrule this aspect of

Kikumura. See Mennen Co. v. Atlantic Mut. Ins. Co., 147 F.3d

287, 294 n.9 (3d Cir. 1998) (noting that a panel of this Court

may overrule the holding of a prior panel that is in direct

conflict with intervening Supreme Court precedent).

We will affirm the District Court’s decision to apply the

preponderance standard to all facts relevant to the Guidelines,

including the finding that Grier committed aggravated assault

under Pennsylvania law.

B.

That the District Court applied an acceptable burden of

proof does not, of course, mean that its findings of fact should

be upheld. We have traditionally reviewed factual findings

relevant to sentencing under a “clearly erroneous” standard.

See, e.g., United States v. Lennon, 372 F.3d 535, 538 (3d Cir.
23

2004). The parties apparently assume that the same standard

should govern in this case.

However, the issue is not so clear cut. The Supreme

Court in Booker excised subsection (e) of 18 U.S.C. § 3742, the

provision of the United States Code that defined the appropriate

standard of review for issues relevant to sentencing. 543 U.S.

at 259. It held that appellate courts should thereafter review the

ultimate sentence for “reasonableness.” Id. at 260-63.

Unfortunately, it did not specify whether the clearly erroneous

standard should continue to apply to factual findings bearing on

the advisory Guidelines range.

1.

Three options for a standard of review are available.

First, courts of appeals could simply refuse to review factual

findings relevant to the Guidelines on the ground that they do

not govern the district court’s final discretionary sentence. See

United States v. Mickelson, 433 F.3d 1050, 1052-55 (8th Cir.

2006). Second, they could review factual determinations for

“reasonableness,” the standard suggested by Booker for review

of the ultimate sentence. See 543 U.S. at 261. Third, courts

could continue to review findings for “clear error.” See Lennon,

372 F.3d at 538.

The first alternative, under which appellate courts would

decline to review factual findings relevant to the Guidelines, is

clearly untenable. District courts are required, under 18 U.S.C.

§ 3553(a), to consider the range prescribed by the Guidelines in

imposing sentence on a defendant. Id. § 3553(a)(4); see also
24

Booker, 543 U.S. at 261; Cooper, 437 F.3d at 329-32. The only

manner by which this range can be determined is through a

series of factual findings, adjusting the defendant’s offense level

and criminal history category. An error in these findings will

result in an error in the recommended sentencing range and,

thus, will necessarily impact the district court’s assessment of

the factors of 18 U.S.C. § 3553(a). Appellate review of the

district court’s factual conclusions is essential to ensure

compliance with statutory mandates. See United States v.

Haack, 403 F.3d 997, 1003 (8th Cir.), cert. denied, 126 S. Ct.

276 (2005).

The second alternative, under which courts of appeals

would review findings of the district court for “reasonableness,”

is also unfeasible. The Supreme Court explained in Booker that

review for “reasonableness” is meant to assess the ultimate

sentence imposed: to determine whether the sentencing judge

gave meaningful consideration to the factors of 18 U.S.C.

§ 3553(a). 543 U.S. at 260-61. Nothing in Booker suggests that

the same standard is to be applied to evaluate the quantum of

evidence offered in support of a particular finding of fact, even

one that played a role in the court’s final sentence. Indeed,

application of the “reasonableness” standard, with its broad

focus on policy goals, would be incompatible with review of

factual findings. See United States v. Mashek, 406 F.3d 1012,

1015 (8th Cir. 2005).

Review for clear error offers the sole viable approach.

The Supreme Court in Booker excised the “clearly erroneous”

standard from 18 U.S.C. § 3742(e) only because other aspects

of that subsection included impermissible references to a
25

mandatory Guidelines scheme. 543 U.S. at 260. Just as the

Supreme Court interposed the “reasonableness” standard to fill

in the gap for review of the ultimate sentence, the clearly

erroneous standard fills in the gap for review of particular

factual determinations.

Other courts of appeals have unanimously, if implicitly,

adopted this approach. United States v. Robinson, 433 F.3d 31,

38 (1st Cir. 2005); United States v. Castillo, 430 F.3d 230, 238-

39 (5th Cir. 2005); United States v. Garcia, 413 F.3d 201, 221-

22 (2d Cir. 2005); United States v. Davidson, 409 F.3d 304, 310

(6th Cir. 2005); United States v. Mashek, 406 F.3d 1012, 1016

(8th Cir. 2005); United States v. Bothun, 424 F.3d 582, 585-86

(7th Cir. 2005); United States v. Smith, 424 F.3d 992, 1015 (9th

Cir. 2005), cert. denied, 126 S. Ct. 1477 (2006); United States

v. Clark, 415 F.3d 1234, 1246 (10th Cir. 2005); United States v.

Ebersole, 411 F.3d 517, 536 (4th Cir. 2005), cert. denied, 126

S. Ct. 1142 (2006); United States v. Crawford, 407 F.3d 1174,

1177 (11th Cir. 2005). Indeed, we have previously suggested

that the clearly erroneous standard would continue to apply postBooker. See United States v. Miller, 417 F.3d 358, 362-63 (3d

Cir. 2005) (“Nothing in Booker . . . necessarily calls into

question the correctness of the District Court’s factual findings

or procedural decisions at the resentencing, or, for that matter,

this court’s [previous] approval thereof.”); United States v.

Pojilenko, 416 F.3d 243, 247 (3d Cir. 2005) (reviewing factual

findings relevant to sentencing for clear error).

Despite the excision of subsection (e) of 18 U.S.C.

§ 3742, this Court will continue to review factual findings

relevant to the Guidelines for clear error and to exercise plenary
5

The District Court did not make this finding on the

record, but adopted the conclusion of the presentence report.

See United States v. Collado, 975 F.2d 985, 990 (3d Cir. 1992)

(“Where . . . the district court makes no independent findings of

fact in relation to sentencing issues, but instead adopts the

reasons set forth by the probation officer in the presentence

investigation report, we view the report as containing the only

findings of fact that support the court’s sentencing decision.”).

26

review over a district court’s interpretation of the Guidelines.

See, e.g., Robinson, 433 F.3d at 35. “A finding is ‘clearly

erroneous’ when[,] although there is evidence to support it, the

reviewing [body] on the entire evidence is 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 (1993) (quoting

United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).

A sentence imposed as a result of a clearly erroneous factual

conclusion will generally be deemed “unreasonable” and,

subject to the doctrines of plain and harmless error, will result

in remand to the district court for resentencing. E.g., Robinson,

433 F.3d at 35; see also Booker, 543 U.S. at 268.

2.

The challenged finding in this case, that Grier committed

aggravated assault,5

 is not clearly erroneous. Aggravated assault

is defined under Pennsylvania law as an “attempt[] to cause

serious bodily injury to another . . . under circumstances

manifesting extreme indifference to the value of human life” or

an “attempt[] to cause . . . bodily injury to another with a deadly
6

Defense counsel argues that the statements by these

bystanders were “classic hearsay.” This may be true, but the

Federal Rules of Evidence do not apply at sentencing, see Fed.

R. Evid. 1101(d)(3); see also Kikumura, 918 F.2d at 1099-1100,

and counsel does not argue that Navarro’s recollection of the

statements was so unreliable as to preclude admission under the

liberal standards governing these proceedings, see U.S.

Sentencing Guidelines Manual § 6A1.3(a) (“In resolving any

dispute concerning a factor important to the sentencing

determination, the court may consider relevant information

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.”); see also

18 U.S.C. § 3661 (“No limitation shall be placed on the

information . . . which a court of the United States may receive

and consider for the purpose of imposing an appropriate

sentence.”); United States v. Paulino, 996 F.2d 1541, 1547 (3d

Cir. 1993) (“Prior to the Sentencing Guidelines, the principle

27

weapon.” 18 Pa. Cons. Stat. § 2702(a). An “attempt” may be

found “when, with intent to commit a specific crime, [the

individual] does any act which constitutes a substantial step

toward the commission of that crime.” Id. § 901(a); see also

Commonwealth v. Hall, 830 A.2d 537, 541-42 (Pa. 2003).

The evidence presented during the sentencing hearing

supports a finding that Grier attempted to cause bodily injury to

Navarro with a deadly weapon. Navarro testified that he did not

enter the fight with any weapons. The firearm was produced in

some manner during the course of the altercation, and other

individuals warned Navarro that Grier had a gun.6

 Soon
that sentencing judges could consider evidence at sentencing

that would not be admissible at trial was firmly established[,] . . .

subject to a due process standard of reliability.”). See also

United States v. Martinez, 413 F.3d 239, 243 (2d Cir. 2005)

(“Booker . . . provide[s] no basis to question prior Supreme

Court decisions that expressly approved the consideration of

out-of-court statements at sentencing.”), cert. denied, 126 S. Ct.

1086 (2006).

28

thereafter, the gun discharged. When the two combatants stood

up, Grier was holding the weapon, aimed at Navarro. Grier then

pointed the gun toward the sky, fired a single shot, and left the

scene.

The precise circumstances of the fight are matters of

reasonable speculation. 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. An equally plausible explanation of

the evidence, however, is 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.

The District Court was entitled to credit the latter version.

See, e.g., Coalition To Save Our Children v. Bd. of Educ., 90

F.3d 752, 759 (3d Cir. 1996). Despite defense counsel’s

protestations, and despite the absence of “direct” evidence that
29

Grier voluntarily produced the gun, see United States v. Bycer,

593 F.2d 549, 551 (3d Cir. 1979) (“The fact that evidence is

categorized as circumstantial does not make it less probative.”),

the testimony from Navarro could reasonably be interpreted as

showing that Grier purposefully pulled the firearm during the

fight and fired at Navarro with the intent to cause serious bodily

harm. This supports the conclusion that Grier committed

aggravated assault, warranting a four-level enhancement under

the Guidelines. See U.S. Sentencing Guidelines Manual

§ 2K2.1(b)(5).

Grier’s other claims, that he has established self-defense

and that the offense should be classified as simple assault by

mutual consent, fail for similar reasons. Pennsylvania law

recognizes self-defense as a justification for a crime only if:

(a) the actor was free from fault in provoking or

continuing the difficulty which resulted in the use

of deadly force; (b) the actor reasonably believed

that he was in imminent danger of death or

serious bodily injury and that there was a

necessity to use such force in order to save

himself or others; and (c) the actor did not violate

any duty to retreat or to avoid the danger.

Commonwealth v. Harris, 703 A.2d 441, 449 (Pa. 1997); see

also 18 Pa. Cons. Stat. § 505(b)(2) (“The use of deadly force is

not justifiable under this section unless the actor believes that

such force is necessary to protect himself against death[ or]
7

At the time of the altercation, Grier was suffering from

migraines and other adverse effects of recent surgery to remove

a brain tumor; however, there is no evidence suggesting that

these conditions rendered Grier at risk of serious injury or death

from Navarro’s attack.

30

serious bodily injury . . . .”). Grier admittedly played a role in

starting the altercation by telling Navarro: “[L]et the problem

be right here and now.” And the record does not mandate a

finding that Grier believed that he was “in imminent danger of

death or serious bodily injury” during the fight, or that “there

was a necessity to use such force in order to save himself.”7

 See

Harris, 703 A.2d at 449. There is no reason, let alone a

compelling one, to conclude that the District Court erred in

refusing to recognize Grier’s claim of self-defense.

Nor did the District Court err in declining to characterize

the crime as “simple assault by mutual consent.” This offense

is a lesser-graded version of simple assault, applicable when

both parties share equal responsibility for commencing the

underlying fight or scuffle. 18 Pa. Cons. Stat. § 2701(b)(1).

There is, however, no similar exception for aggravated assault.

See id. § 2702. The District Court’s finding that Grier had

committed aggravated assault rendered the mutual consent

provision inoperative. 

C.

The final question in this case, and the ultimate inquiry

in the review of any sentence post-Booker, is whether the

sentence was “reasonable.” The touchstone of “reasonableness”
8

These factors include:

(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;

(3) the kinds of sentences available;

(4) the kinds of sentence and the sentencing range

established for . . . the applicable category of

offense committed by the applicable category of

defendant as set forth in the guidelines . . . issued

by the Sentencing Commission[;] . . .

(5) any pertinent policy statement . . . issued by

the Sentencing Commission[;] . . .

(6) the need to avoid unwarranted sentence

disparities among defendants with similar records

who have been found guilty of similar conduct;

31

is whether the record as a whole reflects rational and meaningful

consideration of the factors enumerated in 18 U.S.C. § 3553(a).8
and

(7) the need to provide restitution to any victims

of the offense.

18 U.S.C. § 3553(a).

9

An objection to the reasonableness of the final sentence

will be preserved if, during sentencing proceedings, the

defendant properly raised a meritorious factual or legal issue

relating to one or more of the factors enumerated in 18 U.S.C.

§ 3553(a). See Cooper, 437 F.3d at 329 (citing United States v.

Cunnigham, 429 F.3d 673, 679 (7th Cir. 2005)). The

government does not argue in this case that Grier failed to

preserve his challenge to the sentence imposed by the District

Court.

32

Cooper, 437 F.3d at 329-32; see also Booker, 543 U.S. at 261.

It must be clear that the district court understood and reasonably

discharged its obligation to take all of the relevant factors into

account in imposing a final sentence. E.g., Cooper, 437 F.3d at

329-32.

The record in this case is simply too sparse to allow us to

conclude that the District Court honored its statutory duty.9

 The

only explanation of the sentence provided by the District Court

was: “The Court believes that 100 months is reasonable in view

of the considerations of section 3553(a).” This statement, as a

justification of the sentence, leaves much to be desired. It is

devoid of substantive content and offers little assistance to an

appellate tribunal reviewing the sentence.
33

More elaboration is necessary. The Sentencing Reform

Act mandates that the District Court “consider” the factors of 18

U.S.C. § 3553(a). Id. The record must disclose meaningful

consideration of the relevant statutory factors and the exercise

of independent judgment, based on a weighing of those factors,

in arriving at a final sentence. Cooper, 437 F.3d at 329-32.

The rationale by which a district court reaches a final

sentence is important. It offers the defendant, the government,

the victim, and the public a window into the decision-making

process and an explanation of the purposes the sentence is

intended to serve. It promotes respect for the adjudicative

process, by demonstrating the serious reflection and deliberation

that underlies each criminal sentence, and allows for effective

appellate oversight.

We will remand this case to allow the District Court to

resentence the defendant. We do not suggest that the original

sentence reflects anything less than the sound judgment of the

district judge, or that the final sentence should necessarily differ

from the one previously imposed. The nature of the final

sentence is, as always, a matter within the discretion of the

District Court. We do ask, however, that the District Court

explain its decision on the record, specifically by reference to

the factors of 18 U.S.C. § 3553(a).

III.

The opinion in Booker did not alter the burden of proof

or the standard of review for findings of fact relevant to

sentencing. But it did, by rendering the United States
34

Sentencing Guidelines advisory rather than mandatory, place

a premium on thorough explication of sentencing decisions. 

A reasoned and rational justification for a sentence is

necessary to assure the parties of the fairness of the

proceedings, to instill public confidence in the judicial

process, and to allow for effective appellate review.

The explanation offered by the District Court in this

case fell short of this goal. It simply recites the necessity of

compliance with 18 U.S.C. § 3553(a) without expressly

considering the relevant statutory factors. While the original

sentence was most likely the product of comprehensive and

thoughtful deliberation, the record does not reflect that fact. 

We will remand this case to allow the District Court to

reconsider the factors of 18 U.S.C. § 3553(a) on the record

and then to resentence the defendant.

The judgment of sentence will be vacated and this case

will be remanded to the District Court for further proceedings

in accordance with this opinion.

SLOVITER, Circuit Judge, dissenting.

I respectfully dissent from the opinion of the majority. 

In treating the finding of an aggravated assault as a sentencing

factor that may permissibly be used to enhance Grier’s

sentence, the majority has abrogated the Fifth Amendment of

the United States Constitution. The Supreme Court’s decision

in United States v. Booker, 543 U.S. 220 (2005), did not

discuss the Fifth Amendment nor did it suggest that it had no

role in sentencing: certainly the majority, as an inferior court,
35

has no authority to abnegate one of the most important, if not

the most important, of the rights that the Constitution assures

criminal defendants. 

The majority accomplishes this draconian move by

holding that a defendant’s sentence can be enhanced by a

District Court’s finding by a preponderance of the evidence

that the defendant committed a criminal offense, a finding

which, according to the majority, need not be submitted to a

jury. The majority states: “We will affirm the District Court’s

decision to apply the preponderance standard to all facts

relevant to the Guidelines, including the finding that Grier

committed aggravated assault under Pennsylvania law.” Maj.

Typescript Op. at 22. This holding turns constitutional

criminal procedure on its head.

I.

Central to our consideration of Grier’s appeal from the

sentence imposed by the District Court following his guilty

plea to possession of a firearm by a convicted felon in

violation of 18 U.S.C. § 922(g)(1), is the effect of the recent

trilogy of opinions of the United States Supreme Court on

sentencing, United States v. Apprendi, 530 U.S. 466 (2000),

Blakely v. Washington, 542 U.S. 296 (2004), and United
10 U.S.S.G. § 2K2.1(b)(5) provides in relevant part that

“[i]f the defendant used or possessed any firearm or ammunition

in connection with another felony offense . . . increase by 4

levels.”

36

States v. Booker, 543 U.S. 220 (2005),10 but primarily

Apprendi.

II.

The charge to which Grier pled guilty has a statutory

maximum imprisonment term of 120 months, 18 U.S.C. §

924(a)(2), and no mandatory minimum. In the Presentence

Report (PSR), the Probation Officer 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. This calculation was based on, inter alia, a

four-level enhancement pursuant to U.S.S.G. § 2K2.1(b)(5)

on the ground that Grier “used or possessed the firearm in

connection with another felony offense (aggravated assault).” 

PSR, para. 14. The PSR stated that “[b]ecause [Grier] pled

guilty to a charge which has a maximum statutory penalty of

10 years . . . the guideline term is 120 months pursuant to

U.S.S.G. § 5G1.1(a).” PSR, para. 50. The PSR also noted

that without the four-level enhancement under § 2K2.1(b)(5)

the appropriate sentencing range would be 84 to 105 months

in prison.
11 Although the sentence Grier actually received

happened to fall within the statutory maximum and the

Guideline range of 84 to 105 months that would have been

applicable had there been no four-level enhancement, the

majority’s constitutional analysis does not depend on that fact,

nor could it following the decision in Blakely. See discussion

at page 14 infra.

37

At the sentencing hearing held February 25, 2005,

which was after Booker was decided, the District Court,

treating the Sentencing Guidelines as advisory, adopted the

PSR which referred to the “other felony offense” as

“aggravated assault.” In determining that Grier had

committed that “other felony offense,” the District Court

expressly used the preponderance of the evidence standard,

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. 

There can be no doubt, and the majority does not question,

that the PSR conclusion, adopted by the District Court, played

a role in Grier’s ultimate sentence.11

On appeal, Grier contends that the District Court

committed two errors when it enhanced his sentence under §

2K2.1(b)(5). First, the District Court based the enhancement

on facts found by a preponderance of the evidence, rather than

beyond a reasonable doubt, in violation of Grier’s Fifth

Amendment right to due process of law. Second, Grier argues

that the record does not support a finding that he committed
12 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.

13 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); 18 U.S.C. §

3742(a)(1). 

38

an aggravated assault, regardless of what standard of proof is

used.12

III.

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 using the firearm, be found

beyond a reasonable doubt, is a question of law and is

therefore subject to plenary review.13 See United States v.

Williams, 235 F.3d 858, 861 (3d Cir. 2000). The District

Court’s findings of facts are reviewed for clear error. United

States v. Gibbs, 190 F.3d 188, 203 (3d Cir. 1999). I consider

first the changes in sentencing that have resulted from the

Supreme Court’s recent trilogy in Apprendi, Blakely, and
39

Booker and then analyze Grier’s due process rights in the

context of this new sentencing regime. 

A. The Impact of United States v. Booker

The holdings of the two Booker opinions are by now

sufficiently reviewed that I need not dwell on them. The

Booker opinion authored by Justice Stevens for a majority of

five reaffirmed the holding in Apprendi that “[a]ny fact (other

than a prior conviction) which is necessary to support a

sentence exceeding the maximum authorized by the facts

established by a plea of guilty or a jury verdict must be

admitted by the defendant or proved to a jury beyond a

reasonable doubt” and extended that rule to the Sentencing

Guidelines. Booker, 543 U.S. at 244. In the opinion authored

by Justice Breyer, the Court severed and excised both the

provision of the Act that made the Guidelines mandatory, 18

U.S.C. § 3553(b)(1), and the provision that set forth standards

of review on appeal, 18 U.S.C. § 3742(e), Booker, 543 U.S. at

259-60, thereby transforming the Guidelines to advisory

guidelines for the information and use of the district courts in

whom discretion was now reinstated. The Court noted that

district courts do not have complete discretion, as they must

“consult those Guidelines and take them into account when

sentencing.” 543 U.S. at 264. 

In its interpretation of Booker, the majority states,

“Once an individual has been convicted by a jury beyond a

reasonable doubt of the predicate facts of illegal conduct,

triggering a statutory maximum penalty, a court may impose

any sentence on the individual up to that maximum. Judicial
40

factfinding in the course of selecting a sentence within the

permissible range does not implicate or offend the Fifth and

Sixth Amendment rights to a jury trial and proof beyond a

reasonable doubt.” Maj. Typescript Op. at 11. It later states,

“The excision of these provisions [making the Guidelines

mandatory and providing de novo review of departures]

rendered the Guidelines advisory, freeing the trial judge to

impose any sentence permitted under the United States Code

regardless of the sentence recommended by the Guidelines.” 

Maj. Typescript Op. at 14-16. 

Both are overstatements. A finding of guilt of an

additional offense for purposes of increasing a defendant’s

sentence definitely “implicates” the Fifth Amendment.

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 Fifth

Amendment rights or would violate the Fifth Amendment

rights of any criminal defendant similarly situated.
41

B. Fifth Amendment Due Process Rights at Sentencing

A Fifth Amendment challenge, like the Fourteenth

Amendment challenge at issue in Apprendi, involves a

constitutional protection of “surpassing importance: the

proscription of any deprivation of liberty without ‘due process

of law.’” Apprendi, 530 U.S. at 476 (citation omitted). 

Although the Constitution does not explicitly require that a

finding of guilt be made under a beyond-a-reasonable-doubt

standard, the Supreme Court has explicitly so 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 (1970). 

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 id. at 361 (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). 

The majority’s statement “[t]hat a defendant does not

enjoy the right to a jury trial ineluctably means that he or she

does not enjoy the right to proof beyond a reasonable doubt,”

Maj. Typescript Op. at 9, is simply wrong. That standard is as

equally applicable to a judge who sits as the trier of fact as to

a jury. Indeed, in In re Winship, the Court held that a
42

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 Fifth Amendment. Writing for the majority of the

Supreme Court which reversed 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. 

 Justice Harlan, concurring, 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. He

explained that “a standard of proof represents an attempt to

instruct the factfinder concerning the degree of confidence our

society thinks he should have in the correctness of factual

conclusions for a particular type of adjudication.” Id. at 370. 

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
43

expected to have in the correctness of his factual

conclusions.” Id. 

He 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 (quoting Speiser

v. Randall, 357 U.S. 513, 525-26 (1958)). 

The Due Process Clause of the Fifth Amendment with

its requirement of proof beyond a reasonable doubt is equally

applicable to issues in sentencing when the underlying

sentencing determination is dependent upon commission of an

offense and requires a finding of guilt or innocence. In Jones

v. United States, 526 U.S. 227 (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 were three

distinct offenses with three maximum penalties. See § 2119;

Jones, 526 U.S. at 229. Subsection 1 provides that the penalty

for carjacking is a fine or imprisonment of not more than 15
44

years or both; Subsection 2 provides that for carjacking if

serious bodily injury results, the penalty is a fine or

imprisonment of not more than 25 years or both; and

Subsection 3 provides that if death results, the penalty is a

fine or imprisonment for any number of years up to life or

both. The district court in Jones instructed the jury on

carjacking, but did not instruct on serious bodily injury, nor

was that pled in the indictment. 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.

When the case reached the Supreme Court, it 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. The Court

found that permitting the judge to make findings regarding

serious bodily harm to the victim by a preponderance of the

evidence thereby increasing the sentencing range for that

crime would present a serious due process issue. See id. at

243.

The majority states that Jones was a statutory

interpretation case and suggests that its holding has no

relevance to the issue before us. I suggest that the majority

reread the text of section III of the Supreme Court’s opinion

in Jones. In support of its decision to read the carjacking

statute as treating the fact of bodily harm as an element of the
45

crime rather than a mere enhancement, the Court discussed at

some length the “‘grave and doubtful constitutional

questions’” that would arise were it to interpret the statute

otherwise. Id. at 239 (quoting U.S. ex rel. Attorney Gen. v.

Del. & Hudson Co., 213 U.S. 366, 408 (1909)). After citing

In re Winship, referred to above, the Court reviewed the

holdings in Mullaney v. Wilbur, 421 U.S. 684 (1975),

Patterson v. New York, 432 U.S. 197 (1970), and McMillan

v. Pennsylvania, 479 U.S. 79 (1986), focusing on the

constitutional issues they presented. Jones, 526 U.S. at 240-

42. In a footnote, the Jones 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. at 243 n.6 (emphasis added).

Further belying the majority’s disregard of the

significance of Jones are the following statements in the Jones

opinion: 

The question might well be less serious than the

constitutional doubt rule requires if the history bearing

on the Framers’ understanding of the Sixth

Amendment principle demonstrated an accepted

tolerance for exclusively judicial factfinding to peg

penalty limits. But such is not the history . . . [S]everal
14 The “constitutional doubt rule” referred to in the Jones

paragraph quoted above 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 (quoting Del. &

Hudson, 213 U.S. at 408).

46

studies demonstrate that on a general level the tension

between jury powers and powers exclusively judicial

would likely have been very much to the fore in the

Framers’ conception of the jury right.

Id. at 244.14

Jones, with its affirmation of the principle that due

process protections are required for offense-defining

elements, was followed by Apprendi, in which the Court

distinguished between sentencing factors which the district

court may find by a preponderance of the evidence and

consider 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. As to sentencing factors, the Court stated:

We should be clear that nothing in this history

suggests that it is impermissible for judges to exercise

discretion - taking into consideration various factors

relating both to the offense and offender - in imposing

a judgment within the range prescribed by statute. We

have often noted that judges in this country have long
47

exercised discretion of this nature in imposing sentence

within statutory limits in the individual case.

Apprendi, 530 U.S. at 481. The Court contrasted the

determinations of sentencing factors 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. 

The Court stated that “[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 United States v. Almendarez-Torres, 523 U.S. 224,

251 (1998) (Scalia, J., dissenting)). The Court then explained

which facts are entitled to the due process protections. Justice

Stevens, writing for the Apprendi majority, quoted from his

concurring opinion in Jones, where he wrote, “‘[I]t is
48

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 (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. 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. 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. 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 United

States 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
49

presented.” Id. at 475-76. The Court then quoted from the

opinion in United States v. Gaudin, 515 U.S. 506 (1995), 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 (quoting

Gaudin, 515 U.S. at 510). 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.” 

Apprendi, 530 U.S. at 480. It quoted from a well-known

historical treatise:

Where a statute annexes a higher degree of punishment

to a common-law felony, if committed under particular

circumstances, an indictment for the offence, in order

to bring the defendant within that higher degree of

punishment, must expressly charge it to have been

committed under those circumstances, and must state

the circumstances with certainty and precision.

Id. (quoting J. Archibold, Pleading & Evidence in Criminal

Cases, 51 (15 ed. 1862)).

After that discussion, the Apprendi Court held that the

New Jersey statutory scheme, allowing a judge to make

findings 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. (“In light of
50

the constitutional rule . . . and all of the cases supporting it,

this practice cannot stand.”). The Hate Crime Enhancement

statute requires a particular criminal mens rea, and the Court

therefore rejected New Jersey’s argument that the required

“motive” finding was simply a “traditional” sentencing factor. 

Id. at 493-94. 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. Distinguishing

Almendarez-Torres (which held evidence of prior convictions

admissible without further proof), the Court stated:

there 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 (emphasis added).

That statement alone is dispositive of this appeal. 

Grier’s sentence was enhanced based on the District Judge’s

finding that he 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
51

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. The advisory Guidelines do not have this effect.”

Maj. Typescript Op. at 17. This, I respectfully state, is a non

sequitur.

C. Fifth Amendment Due Process rights Post-Apprendi

Grier contends that his Fifth Amendment due process

rights, as delineated in Winship, Jones, and Apprendi, were

violated when the judge found that he had committed a

separate felony offense which exposed him to a sentence of

120 months. At argument, the Government contended that

no Apprendi analysis is required in this case because Booker

marked a return to judicial discretion in sentencing, and the

ultimate sentence that Grier received was within the

sentencing range for the crime to which he pled guilty; as

noted previously, the range for his crime was 84-105 months

and he received a sentence of 100 months. The Government

also contended that because Booker did not explicitly require

that findings of fact relevant to sentencing be made under the

beyond-a-reasonable-doubt standard, findings of fact that

enhance a sentence need only be made by a preponderance of

the evidence. Lastly, the Government argued that the

Supreme Court’s decision in United States v. Watts, 519 U.S.

148 (1997), and this court’s own decision in United States v.

Miller, 417 F.3d 358 (3d Cir. 2005), held that Booker permits

factual finding relevant to sentencing to be made by a

preponderance of the evidence. 
52

This court’s decision in United States v. Williams, 235

F.3d 858 (3d Cir. 2000), arguably lends some support to the

Government’s contention that Grier’s case does not warrant

an Apprendi analysis. In that case, this court held that

Apprendi did not apply to a Guidelines sentence that was

below the statutory maximum even though we recognized that

the sentencing judge’s enhancement was based on facts not

proved beyond a reasonable doubt. “[W]e hold that Apprendi

does not apply to the increase in Williams’ sentence under the

Sentencing Guidelines.” Id. at 862; see also United States v.

Cepero, 224 F.3d 256, 267 n.5 (3d Cir. 2000) (en banc)

(“Because application of the Sentencing Guidelines in this

case does not implicate a fact that would increase the penalty

of a crime beyond the statutory maximum, the teachings of

[Apprendi] are not relevant here.”). 

The Williams court did not have the benefit of the

Supreme Court’s decisions in Blakely and Booker and

therefore its interpretation of Apprendi was too narrow. 

Blakely applied the Court’s 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. See

note 2 supra. Because Blakely held that “the ‘statutory

maximum’ for Apprendi 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 (emphasis in original), any enhancement based on

additional facts, even if the ultimate sentence is within the

statutory range, raises an Apprendi issue. 
15 The PSR stated that Grier committed an aggravated

assault and Grier’s brief focuses on that finding. At the

sentencing hearing the Government argued that Grier committed

simple assault by physical menace, which constitutes a felony

under Pennsylvania law and would support application of the

four-level enhancement under U.S.S.G. § 2K2.1(b)(5). See 18

Pa. Cons. Stat. § 2701(a)(3). The District Court did not make a

finding as to whether Grier had committed a simple assault by

physical menace, but instead adopted the PSR. Accordingly, I

do not consider the Government’s argument on this point.

53

Grier’s sentence was based in part on the PSR which

concluded that Grier had committed an aggravated assault.15

Grier’s commission of an aggravated assault, vel non, is not

simply a sentencing factor, i.e. a fact enhancing the crime of

conviction, such as the vulnerability of the victim, the status

of the victim, the defendant’s role in the offense. See

U.S.S.G. § 3A.1. et seq. Rather, an aggravated assault

constitutes a separate crime under relevant state law. See,

e.g., 18 Pa. Cons. Stat. § 2702. The District Court’s

acceptance of the PSR’s finding that Grier committed

aggravated assault essentially penalized Grier for committing

a felony without a jury or judge determination that he

committed that crime beyond a reasonable doubt. As a result

of this finding, his sentencing range was increased from 84-

105 months to the statutory maximum of 120 months. 

In Apprendi the Court stated:

The differential in sentence between what Apprendi

would have received without the finding of biased
54

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. 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, 477 U.S., at 88.

530 U.S. at 495. 

Apprendi’s sentence was vacated because the

sentencing judge in that case found facts that constitute a

separate crime by a preponderance of evidence and that

finding increased the statutory maximum to which the

defendant was exposed. Grier’s situation is thus comparable

to Apprendi’s and the holding of the majority is directly

contrary to the reasoning in Apprendi. 

My view is consistent with that expressed in Justice

Thomas’ partial dissent in Booker, where he noted that “[t]he

commentary to § 6A1.3 states that ‘[t]he 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
55

guidelines to the facts of a case.’ The Court’s holding today

[in Booker] 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 (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.”). 

 The Government contends that requiring proof beyond

a reasonable doubt for sentencing enhancements based on

facts constituting a separate crime is contrary to the Supreme

Court’s precedent in United States v. Watts, 519 U.S. 148

(1997). Watts held that a sentencing judge could consider

conduct underlying an acquitted charge. In Booker, Justice

Stevens characterized Watts as a case that “presented a very

narrow question regarding the interactions of the Guidelines

with the Double Jeopardy Clause, and did not even have the

benefit of full briefing or oral argument.” Booker, 543 U.S. at

240 n.4. He also noted that there was no contention in Watts

“that the sentencing enhancement had exceeded the sentence

authorized by the jury verdict[.]” Id. at 240. Because the key

issues in Watts are different both from those addressed by the

Court in Booker and from those Grier raises, I believe that

Watts is inapposite. 

According to the Government, requiring proof beyond

a reasonable doubt of facts underlying a sentencing
56

enhancement would contradict this court’s decision in Miller,

417 F.3d 358. In Miller, we considered judicial factfinding

after the Supreme Court’s pronouncements in Booker. We

observed that “[n]othing in Booker . . . necessarily calls into

question the correctness of the District Court’s factual

findings or procedural decisions at resentencing . . . . We

merely note that the District Court is free to engage in

precisely the same exercise in judicial fact finding as it did in

February 2003, so long as such fact finding is consistent with

Booker.” Id. at 362-63. 

There are clear differences between the issue before us

today and the issues faced by the Miller court. First, the

phrase from Miller quoted above is dictum and therefore does

not bind our decision here. Second, no Fifth Amendment Due

Process claims had been asserted by the defendants in Miller

and we did not have the opportunity to consider the arguments

that Grier raises. Therefore, Miller is inapposite. 

The cases cited by the majority as in accord with its

decision do not in fact so hold. Many of them are cases where

the issue was merely the amount of drugs, clearly a

sentencing factor after the defendant was found guilty or pled

to the underlying drug offense. See, e.g., United States v.

Vaughn, 430 F.3d 518 (2d Cir. 2005), cert. denied sub nom.

Lindo v. United States, 126 S. Ct. 1665 (2006); United States

v. Morris, 429 F.3d 65 (4th Cir. 2005); United States v.

Magallanez, 408 F.3d 672 (10th Cir.), cert. denied, 126 S. Ct.

468 (2005); United States v. Duncan, 400 F.3d 1297 (11th

Cir.), cert. denied, 126 S. Ct. 432. There was no mention of

the Fifth Amendment in United States v. Pirani, 406 F.3d 543
57

(8th Cir.) (en banc), cert. denied, 126 S. Ct. 266 (2005). The

decision in United States v. Mares, 402 F.3d 511 (5th Cir.),

cert. denied, 126 S. Ct. 43 (2005), was based on the Sixth

Amendment, not the Fifth Amendment. None of the cases

cited by the majority focus on the issue that is the basis for

this dissent. In any event, if they did and were to hold

otherwise, I would believe that they were incorrectly decided. 

Accordingly, I respectfully dissent from the holding

that the District Court may enhance Grier’s sentence based on

its determination by a preponderance of the evidence, that

Grier committed an aggravated assault that was not admitted

nor submitted to a jury for determination by proof beyond a

reasonable doubt.

D. The District Court’s Findings of Fact

Although I agree with the majority’s decision to

remand this case to the District Court for resentencing, I

respectfully dissent from the majority’s determination to

allow the District Court to reconsider its determination that

Grier committed an aggravated assault, as I believe that

finding was clearly erroneous. 

Even if the majority were convincing that the

appropriate standard of proof is preponderance of the

evidence the District Court erred in finding that Grier

committed an aggravated assault. United States v. Gibbs, 190

F.3d 188, 197 (3d Cir. 1999). 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
58

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 U.S.S.G. § 2K2.1(b)(5)

because it does not meet the requirements 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. 

The evidence at the sentencing hearing consisted only

of the testimony from Juan Navarro, the brother of Grier’s

girlfriend, with whom he engaged in the altercation that

constituted the basis for the finding of aggravated assault. 

Navarro testified that he “swung first,” i.e., that he was the

first aggressor in the altercation. App. at 51; Tr. at 10, l. 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. 
59

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 me.” App. at

57; Tr. at 16, l. 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, l. 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, l. 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). 

“Simple 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. 

Self-defense is an affirmative defense, and forms a

complete defense under Pennsylvania law “when the actor

believes that such force is immediately necessary for the

purpose of protecting himself against the use of unlawful

force by the other person.” Commonwealth v. Gray, 867

A.2d 560, 568 (Pa. Super. Ct. 2005) (internal quotation and

citation omitted). A person is only entitled to use that force
60

which is reasonably necessary to protect himself. See

Commonwealth v. Harvey, 812 A.2d 1190, 1996 (Pa. 2002). 

The use of deadly force is not permissible unless “the actor

believes that such force is necessary to protect himself against

death, serious bodily injury, kidnapping or sexual intercourse

compelled by force or threat.” 18 Pa. Cons. Stat. § 505(b)(2).

In this case, there is no evidence that Grier used deadly

force because the evidence does not show that he ever fired

the gun at Navarro. Rather, the evidence was that he pointed

the gun at Navarro and then fired it in the air in order to end

the fight. 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. There is

evidence that the gun discharged accidentally as a result of the

struggle with Navarro and bystanders. Grier uttered no

threats and appeared to use the gun only as a means of

warding off a further attack and ending the struggle. The

record contains ample evidence that Navarro was the

aggressor and that Grier was acting only in self-defense. 

The majority contends: 

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. An equally

plausible explanation of the evidence, however, is that

Grier intentionally pulled the gun from his clothing

and, while the two men were on the ground, fired a
61

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. Typescript Op. at 28-29. 

By stating that it is “equally plausible” that Grier fired

at Navarro as that the gun fell out of his pocket accidentally,

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. Preponderance requires

more than plausibility. 

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 predicate for the District Court’s

conclusion that Grier committed an aggravated assault by a

preponderance of the evidence must have been 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. When Grier stepped away from

Navarro and fired a shot in the air he was seeking to end the

fight–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. In fact,
62

state charges filed against Grier after the incident were

dismissed. 

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 the altercation, it should have given closer

consideration to his 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 argues that the

“mutual consent” exception does not exist for aggravated

assault, but 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 does apply. See

Commonwealth v. Matthews, 870 A.2d 924, 929 (Pa. Super.

2005); 18 Pa. Cons. Stat. § 2701(a)(3). The majority also

strains to avoid the effect of Grier’s recent brain surgery on

the reasonableness of his self-defense claim. It may be that

Grier reasonably believed he was at particular risk of

incurring a life-threatening injury during a fistfight, but this is

a question that should be examined by the District Court in

the first instance.

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. But the majority ignores the clear error standard,
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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 (1993) (quoting United States v. U.S. Gypsum

Co., 333 U.S. 364, 395 (1948)). 

Because I believe that the District Court’s

enhancement of Grier’s sentence based on a finding that he

committed aggravated assault is wholly unsupported by the

record under any standard, I would remand with instructions

to resentence without the enhancement.

IV.

For the foregoing reasons, I dissent both from the

Court’s holding that the proper standard of proof for a

sentencing enhancement based on a finding of guilt of an

underlying offense is a preponderance of the evidence and

from its remand that in effect permits the court to reconsider

the issue of aggravated assault because it is unsupported by

the evidence.