In United States v. Grier, No. 05-1698 (3d Cir. June 6, 2006), the Third Circuit held that facts relevant to the advisory guidelines do not implicate the constitutional right to proof beyond a reasonable doubt, even when those facts constitute a separate offense. Rather, under the new advisory guidelines scheme, sentencing courts should continue to make factual findings by a preponderance of the evidence. At issue was a 4-level enhancement, pursuant to § 2K2.1(b)(5), based on the district court’s finding that the defendant had committed another felony offense (aggravated assault) in connection with the offense of conviction (unlawful possession of a firearm). The Court said that the Fifth Amendment right to proof beyond a reasonable doubt, and the Sixth Amendment right to trial by jury, attach only to those facts that constitute "elements" of the crime. Once those facts are established beyond a reasonable doubt, triggering a statutory maximum, judicial factfinding within the permissible range does not implicate those rights. The Court also overruled United States v. Kikumura to the extent Kikumura held that sentencing enhancements that can be characterized as "a tail which wags the dog of the substantive offense" require proof by clear and convincing evidence.
Of significance is a lengthy dissent by Judge Sloviter, in which she states that by "treating the finding of an aggravated assault as a sentencing factor that may permissibly be used to enhance [defendant’s] sentence, the majority has abrogated the Fifth Amendment to the United States Constitution." The split on the three-judge panel signals that a petition for further review may be warranted.