As noted in an earlier blog posting, a panel of the 3rd Cir. in US v. Grier ruled on June 7th that the burden of proof on the government at sentencing regarding sentencing factors under the guidelines is by a preponderance in the post-Booker world. The court ruled that this lower standard applied even if the enhancement required finding that the defendant had committed another offense. Along the way, the panel also partially overturned the late Judge Becker's seminal decision in US v. Kikumura, 918 F.2d 1084 (3d Cir. 1990), which had ruled that facts which trigger a large increase in the offense level should be subject to a higher standard -- proof by clear and convincing evidence. Id. at 1101. The panel in Grier was split 2-1, with a vigorous and compelling dissent by Judge Sloviter.
On July 19, 2006, the 3rd Cir. granted Assistant Federal Defender Ronald Krauss' petition for rehearing en banc in Grier (click here), vacating the panel decision. The en banc argument will take place in November.
What this means, at least, is that the Kikumura "clear and convincing" standard for large ("tail that wags the dog") adjustments is once again the law of the circuit, and may very well be restored permanently. In addition, the en banc court could also agree with Judge Sloviter's "beyond a reasonable doubt" standard for adjustments, relevant conduct and other factfinding that increases a sentence and which would, in and of itself, establish a separate crime. Defense counsel should definitely be advocating or at least preserving those positions.
(Peter Goldberger contributed to this posting.)