In United States v. Fisher, No. 06-1795 (3d Cir. September 10, 2007), a split panel of the Court of Appeals reversed its prior decision in United States v. Kikumura, 918 F.2d 1084 (3d Cir. 1990), which held that the facts supporting a massive upward departure must be demonstrated by clear and convincing evidence rather than the lesser preponderance of the evidence standard applicable to the majority of sentencing enhancements. The Court in Fisher held that application of the reasoning in Kikumura went hand-in-hand with the mandatary nature of the guidelines and that since the guidelines were rendered merely advisory by the Supreme Court in United States v. Booker, the concerns raised in Kikumura "were put to rest." Judge Rendell filed a concurring opinion wherein she indicated that while she agreed that Fisher’s sentence should be affirmed, she also believed that due process could, in certain circumstances, require a heightened standard of proof to support a significant sentencing enhancement.
The facts in Fisher were very similar to those in Kikumura. Fisher pled guilty to one count of being a felon in possession in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Based on the circumstances surrounding Fisher’s arrest, the Presentence Report recommended three enhancements, viz., four levels pursuant to U.S.S.G. § 2K2.1(b)(5) for possessing the firearm in relation to another felony (attempted robbery); six levels under § 3A1.2(c)(1) for creating a substantial risk of bodily harm by assaulting a law enforcement officer during flight from a crime and; two levels pursuant to§ 2K2.1(b)(4) because the firearm was stolen. Fisher objected to the enhancements and an evidentiary hearing was held before the district court. The arresting officer testified at the hearing that Fisher pointed the gun at him and pulled the trigger during the chase. The district court found the officer’s testimony to be credible and held that these actions constituted a felony under Delaware law and therefore applied the four level enhancement pursuant to U.S.S.G. § 2K2.1(b)(5). The district court additionally found that because Fisher intended to cause serious bodily harm to a police officer, the six level enhancement under § 3A1.2(c)(1) was also applicable. Lastly, the court found that the firearm was stolen, justifying another two level enhancement. The district court filed an opinion wherein it stated that it had found the facts supporting the two, four and six level enhancements by a preponderance of the evidence. Fisher was sentenced to 108 months of impressment.
Given that the effect of the combined enhancements raised Fisher’s advisory guideline range from 30-37 months to 108-120 months, on appeal Fisher argued that the enhancements were the "tail that wags the dog" at sentencing and under Kikumura, the facts supporting the enhancements should have been established by clear and convincing evidence. While Fisher’s appeal was pending, the Third Circuit handed down its en banc decision in United States v. Grier, 475 F.3d 556 (3d Cir. 2007), which established the burden of proof for sentencing enhancements as a preponderance of the evidence. Since the defendant’s sentence in the Grier case fell within the unenhanced guidelines, the Court of Appeals did not have an occasion to revisit Kikumura. The Court of Appeals framed the narrow issue before it as: "Does the Due Process Clause of the Fifth Amendment require a district court to find facts supporting sentencing enhancements by more than a preponderance of the evidence?" Having conducted an exhaustive review of the history of Due Process rights attached at sentencing, the Court concluded that Due Process does not require a heightened standard of proof for sentencing enchantments, even those that triple a defendant’s sentence. The Court’s reasoning was grounded in the now advisory nature of the Guidelines, noting: "The critical distinction here is the advisory nature of the guidelines under which Fisher was sentenced. A criminal defendant sentenced under a mandatory regime . . . may be entitled to additional or different process than that due a defendant sentenced under the post-Booker advisory Guidelines. After Booker and Grier II (en banc) , however, it is clear that sentencing on facts found by a preponderance of the evidence does not infringe upon a defendant’s rights, whether those rights are derived from the Guidelines or the Constitution." The Court concluded that "challenges to large enhancement’s should be viewed through the lens of Booker reasonableness rather than that of due process." Accordingly, the Court overruled Kikumura. The Court recognized that there is a split in the circuits on this issue and that both the Eighth and Ninth Circuits continue to hold that Kikumura is good law after Booker, while its reasoning was rejected by the Second, Sixth and Seventh Circuits. The Fisher Court did recognize, however, that sentences based on arbitrary or impermissible considerations implicate due process.