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The most important criminal case currently on the docket at the 3d U.S. Circuit Court of Appeals began with a mundane dispute over a stolen bicycle and an unpaid cable television bill. It ended with a shot fired in the air. But those ordinary facts spawned a legally complicated dispute that now promises to yield a decision on a critical issue in federal sentencing relating to the standard of proof judges must use when deciding whether to impose an enhancement. In its decision in U.S. v. Grier, the 3d Circuit voted, 2-1, to uphold U.S. District Judge Sylvia H. Rambo’s decision to apply a four-level enhancement when sentencing Sean Michael Grier to 100 months in prison on a gun charge. But in a strongly worded dissent, Judge Dolores K. Sloviter insisted that the sentence violated Grier’s constitutional rights because Rambo had applied a preponderance-of-the-evidence standard-rather than beyond a reasonable doubt-when deciding to apply an enhancement for aggravated assault. Sloviter complained that the majority’s affirmance of Rambo’s approach “turns constitutional criminal procedure on its head.” Now it appears that Sloviter’s June 6 dissent was persuasive enough to command the attention of a majority of her colleagues, because the 3d Circuit has vacated the decision and voted to have the case reargued before an 11-judge en banc panel. Grier’s lawyer, Assistant Federal Defender Ronald A. Krauss, had urged the full court to take up the case, arguing that Sloviter had correctly identified a fundamental flaw in Rambo’s approach to the sentencing. The appeal, Krauss said, raised a critical issue not only for Grier but for “the development of constitutional criminal law in the 3d Circuit.” Krauss noted that the 3d Circuit had explicitly dodged the question in its 1989 decision in U.S. v. McDowell, when it held that, in general, the proper burden of proof to apply when considering a sentence enhancement is the preponderance-of-the-evidence standard. The McDowell court, Krauss said, prudently refused to address the burden of proof in cases where a sentencing enhancement is premised on “a new and separate offense.” But Krauss said Grier’s case has forced the court to reach that question, and that the majority opinion authored by Judge D. Michael Fisher and joined by Chief Judge Anthony J. Scirica, provided the wrong answer. The right answer, Krauss argued, was supplied by Sloviter’s dissent, in which she analyzed the recent trilogy of U.S. Supreme Court cases that culminated in the high court’s decision in U.S. v. Booker, which declared that the federal sentencing guidelines are merely advisory. It began with a brawl The federal charges against Grier stemmed from his arrest on state charges after a brawl with his girlfriend’s brother, Juan Navarro. According to court papers, Navarro had failed to pay a cable television bill, and his sister (Grier’s girlfriend) had taken his bike as security. When Navarro demanded that she return it, a fight ensued, and he and Grier came to blows. During the struggle, Grier’s gun was fired once. Witness accounts vary, but it was undisputed that no one was injured in the scuffle. Grier was later arrested by Pennsylvania state police on multiple charges, including one count of aggravated assault. State prosecutors later dropped all charges, but soon after, Grier found himself in federal court charged with possession of a firearm by a felon and possession of a stolen firearm. He pleaded guilty to the first charge, and the government dismissed the second. Things got legally complicated at Grier’s sentencing hearing when prosecutors argued that he should be hit with a four-level enhancement under the sentencing guidelines because he had committed “another felony offense” with the gun-the aggravated assault on Navarro. Rambo decided that even though the state charges had been dropped, the assault could be used to enhance the federal sentence. Over the objection of Grier’s lawyer, Rambo held that the preponderance-of-the-evidence test was the proper standard for deciding whether Grier was guilty of the aggravated assault. In the June 6 decision, Fisher found that Rambo’s approach was proper because the Supreme Court’s decision in Booker “did not alter the burden of proof or the standard of review for findings of fact relevant to sentencing.” Krauss argued in his petition for en banc rehearing that Fisher erred by confusing and conflating two distinct rights-the Sixth Amendment right to a jury trial that was at issue in Booker and the Fifth Amendment right to due process that is at issue when deciding which standard of proof to apply. “The Sixth Amendment is concerned with who decides an issue-judge or jury; in contrast, the Fifth Amendment is concerned with how that issue is decided for society-by proof beyond a reasonable doubt or some lesser standard,” Krauss wrote. Although a criminal defendant may waive a jury trial and plead guilty, Krauss said, “no defendant can consent to a change in the burden of proof for a criminal prosecution, because the burden of proof is not the defendant’s to waive.” Sloviter, in her dissent, lodged essentially the same complaint, noting that Booker “offered no discussion of the Fifth Amendment,” and that “there is a clear distinction to be drawn between Fifth and Sixth amendment guarantees.” The central issue in Grier’s case, Sloviter said, “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.” Fisher, in his majority opinion, said that Booker explicitly held that criminal defendants do not have a right to a jury trial on facts relevant to enhancements. Logically, Fisher said, Booker‘s discussion of the defendant’s Sixth Amendment rights “applies with equal force to the Due Process Clause of the Fifth Amendment.” As a result, Fisher said, the fact that a defendant does not enjoy the right to a jury trial on issues of facts that enhance sentences “ineluctably means that he or she does not enjoy the right to proof beyond a reasonable doubt.” But Sloviter said that holding was “simply wrong,” and that the reasonable doubt standard “is as equally applicable to a judge who sits as the trier of fact as to a jury.” Sloviter insisted that courts must distinguish between sentencing enhancements that are borne of factors relating to the crime-such as the vulnerability of the victim or the defendant’s role in the offense-and those enhancements that, on their own, constitute a separate crime. Rambo erred, Sloviter argued, because her 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.”

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