The Need for a Higher Burden of Proof for Factfinding under the Guidelines

Abstract

Relying on the pre-guideline case of McMillan v. Pennsylvania, 477 U.S. 79 (1986), every circuit has now concluded that due process is satisfied by guideline sentencing facts that are proven by a preponderance of the evidence.1 The last circuit to fall prey to the McMillan analysis was the Ninth Circuit in its en banc decision in U.S. v. Restrepo. Restrepo, however, was far from unanimous. Six judges joined the majority opinion, but even they in cluded an important caveat. Referring to McMillan's finding that a sentencing factor could not be tailored to wag the dog of the substantive offense, they noted that [w]hether such an offending tail will yet arise under the Guidelines in this circuit is a question for the future.2 A seventh judge concurred, finding that the penal consequences in question were not so severe as to merit additional safeguards, but that some cases they might tip the balance toward requiring heightened procedural protections in determining the applicability of that factor.3 Four judges dissented. Two of the dissenters wrote that [t]o underscore the value we place on individual liberty, and to ensure the reliability of factual conclusions that result in a loss of that liberty, . . . the reasonable doubt standard should apply.4 The thrust of the dissent was that [a] higher standard of proof would not only avoid the constitu tional questions, but would better serve the purpose of the Sentencing Reform Act.5 Other circuits have expressed discomfort with applying McMillan to guideline sentencing.6 This discomfort should have led to denying McMillan a controlling role in guideline factfinding. By applying McMillan, federal courts have placed themselves in a box. Though all circuits have found that the prepon derance standard satisfies minimal constitutional