UNITED STATES of America v. Sean Michael GRIER, Appellant, 449 F.3d 558

OPINION OF THE COURT FISHER, Circuit Judge. The Supreme Court held in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), that facts relevant to the advisory United States Sentencing Guidelines do not implicate the constitutional right to trial by jury. We now confirm that these facts likewise do not implicate the constitutional right to proof beyond a reasonable doubt. I. It all started with a lost bicycle. The bike was owned by Juan Navarro but had been commandeered by his sister.

She was holding it, with the support of her boyfriend, Sean Michael Grier, as a form of security against Navarro’s promise to pay a cable bill. Navarro did not approve of this arrangement. He confronted Grier and demanded the bike. Grier refused. Navarro said: “[Tjhere’s gonna be some problems if I don’t have my bike back.” Grier responded: “[L]et the problem be right here and now.” Navarro swung at Grier. The punch did not connect, and the two men fell struggling to the ground. Several witnesses warned Navarro that Grier had a gun. A shot was fired. The two men separated, with Grier holding the gun.

Neither had been struck by the bullet or sustained serious injury. Grier pointed the gun at Navarro. Navarro attempted to rush at Grier but was held back by other individuals. Grier pointed the gun upward and fired a single shot. Both men then left the scene. Grier discarded the firearm in a nearby trash can. A police investigation ensued. Officers found the discarded gun, and a background check revealed that it had been stolen. Grier was soon arrested on state charges of aggravated assault, receiving stolen property, and unlawful possession of a firearm. These counts were dismissed in August 2003.

Grier was subsequently charged by federal indictment with possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1), and possession of a stolen firearm, in violation of 18 U.S.C. § 922(j). He pled guilty to the first count; the second count was dismissed pursuant to a plea agreement. A presentence report was prepared. It found that Grier’s conduct during the altercation with Navarro constituted the felony offense of aggravated assault under Pennsylvania law, see 18 Pa.

Cons.Stat. § 2702, and that the offense had been committed in connection with the crime of conviction (unlawful possession of a firearm). This finding resulted in a four-level enhancement in Grier’s offense level under the United States Sentencing Guidelines, raising it from 23 to 27, see U.S. Sentencing Guidelines Manual § 2K2.1(b)(5), and a fifty percent increase in the recommended imprisonment range, raising it from 84 to 105 months to 120 to 150 months, see id. ch. 5, pt. A. The final Guidelines range, in light of the statutory maximum sentence of ten years, see 18 U.S.C. § 924(a)(2), was 120 months. See U.S.

Sentencing Guidelines Manual § 5G1.1. Grier objected to the four-level enhancement, and a sentencing hearing was held on February 25, 2005. The parties argued briefly over the correct burden of proof. Defense counsel claimed that the reasonable-doubt standard should apply while counsel for the government maintained that a preponderance standard should govern. The district judge agreed with the government: “I believe that the standard currently is preponderance, [and] until [I have] something more definitive from the Court of Appeals, it’s what I’ll use.” The only witness to testify at the hearing was Navarro.

He described the altercation and stated that he had not possessed a firearm or any other weapon on his person at the time. He admitted, however, that he had not seen Grier “pull” the gun from his clothing: I don’t know if the gun fell out [of Grier’s pockets] or whatever. People was telling me that he was taking the gun out. And from there, that’s when everybody tried to get the gun away from him. Defense counsel argued that the enhancement should not apply because Grier had acted in self-defense.

She also asserted that, under Pennsylvania law, Grier was guilty not of aggravated assault but of “simple assault by mutual consent,” a lesser-graded version of simple assault punishable by imprisonment for one year or less. See 18 Pa. Cons.Stat. §§ 1104, 2701. This crime is not considered a “felony” under the Guidelines, see U.S. Sentencing Guidelines Manual § 2K2.1 cmt. n. 1, and would not support the enhancement. The District Court adopted the presen-tence report, including the finding of aggravated assault and concomitant enhancement.

It also granted a downward departure of two offense levels “in light of [Navarro’s] conduct, which was partly responsible for the four[-]point enhancement.” With this departure, the range of imprisonment prescribed by the Guidelines was reduced to 100 to 120 months. The District Court recognized that the Guidelines were advisory but nevertheless imposed a term of imprisonment of 100 months, within the recommended range.

It justified this sentence in a single statement: “The Court believes that 100 months is reasonable in view of the considerations of [18 U.S.C. § ] 3553(a).” Defense counsel did not object to the District Court’s explanation for the sentence. This timely appeal followed. Grier argues that the District Court erred in applying a preponderance standard to facts relevant to the four-level enhancement, in finding that he had committed aggravated assault under Pennsylvania law, and in imposing sentence without fully articulating its consideration of the factors under 18 U.S.C. § 3553(a).

We have jurisdiction over these claims under 18 U.S.C. § 3742(

a) and 28 U.S.C. § 129 1. See United States v. Cooper, 437 F.3d 324, 327-28 & n. 4 (3d Cir.2006). II. There is no doubt that Booker, by rendering the United States Sentencing Guidelines advisory rather than mandatory, “brought about sweeping changes in the realm of federal sentencing.” United States v. Davis, 407 F.3d 162, 163 (3d Cir.2005). But there is every reason to believe that the Supreme Court intended that the practices that have guided us and other courts in the twenty years since the Guidelines were first promulgated would continue to govern sentencing in the federal courts.

Under an advisory Guidelines scheme, district courts should continue to make factual findings by a preponderance of the evidence and courts of appeals should continue to review those findings for clear error. The only change in the equation is that, at the end of the day, the district court is not bound by the recommended Guidelines range and the court of appeals must decide whether the final sentence is “reasonable.” A.

The primary issue in this case is whether the Due Process Clause requires facts relevant to enhancements under the United States Sentencing Guidelines, particularly those that constitute a “separate offense” under governing law, to be proved beyond a reasonable doubt. The Supreme Court did not reach this issue in Booker, see 543 U.S. at 259, 125 S.Ct. 738, and we declined to address it in United States v. Cooper, 437 F.3d 324 (3d Cir.2006), see id. at 330 & n. 7.

Nevertheless, we believe that the discussion in Booker regarding the Jury Trial Clause of the Sixth Amendment applies with equal force to the Due Process Clause of the Fifth Amendment. See Apprendi v. New Jersey, 530 U.S. 466, 484, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (discussing these “associated” provisions). That a defendant does not enjoy the right to a jury trial under Booker ineluctably means that he or she does not enjoy the right to proof beyond a reasonable doubt. 1. The constitutional guarantees of “trial ... by an impartial jury,” U.S. Const. amend. VI, and “due process of law,” U.S. Const. amend.

V, stand as a bulwark of individual liberty. They interpose between the legislature and the court the community’s own judgment as to the existence of a crime. Only if a jury of an individual’s peers concludes beyond a reasonable doubt that he or she committed each element of the charged offense, as defined by the legislature, may the court impose punishment. Booker, 543 U.S. at 230, 125 S.Ct. 738 (citing United States v. Gaudin, 515 U.S. 506, 511, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995)). This principle is rooted in common law considerations of fundamental fairness. See, e.g., Blakely v.

Washington, 542 U.S. 296, 301-02, 305-07, 311-12, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004); Apprendi, 530 U.S. at 476-77, 120 S.Ct. 2348; Harris v. United States, 536 U.S. 545, 556-68, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002) (plurality opinion). Individuals must be provided notice of the consequences of them conduct. They must be informed of the nature of illegal acts, through legislative definition of the elements of punishable crimes, and of the possible sentences for those offenses upon conviction.

See Blakely, 542 U.S. at 301-02, 306-07, 311-12, 124 S.Ct. 2531; Apprendi, 530 U.S. at 476-77, 489-94, 120 S.Ct. 2348; Harris, 536 U.S. at 556-68, 122 S.Ct. 2406. An individual who is provided such notice and is nevertheless found by a jury beyond a reasonable doubt to have engaged in illegal conduct has no grounds to complain when the maximum punishment authorized by the legislature is meted out by a judge. See Blakely, 542 U.S. at 304-05, 309, 124 S.Ct. 2531; Harris, 536 U.S. at 556-68, 122 S.Ct. 2406.

Individuals have the right under the Fifth and Sixth Amendments to demand that each and every element of the ,alleged crime be submitted to a jury and proved beyond a reasonable doubt before sentence is imposed. It follows, then, that the fundamental question for these purposes is what facts constitute the “elements” of a “crime.” The answer was provided in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000): The facts constituting the elements of a crime are those that increase the maximum punishment to which the defendant is exposed under governing law. Id. at 490, 120 S.Ct. 2348.

This conclusion was based on a simple syllogism. A crime is defined as conduct that is punishable by the state. Conduct is punishable by the state when it exposes the individual to new or additional penalties. Therefore, any.-eonduct that exposes an individual to punishment or increases the maximum punishment to which he or she is otherwise exposed must be deemed a crime. The predicate facts of such conduct constitute the “elements” of the “crime.” Id. at 483 & n. 10, 485-86, 490, 493-94 & nn. 18-19, 120 S.Ct. 2348 (citing Jones v.

United States, 526 U.S. 227, 244-48, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999); Mullaney v. Wilbur, 421 U.S. 684, 697-98, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975)); see also id. at 500-01, 120 S.Ct. 2348 (Thomas, J., concurring).

It is to these facts, and to these facts alone, that the rights to a jury trial and proof beyond a reasonable doubt attach. “The Fifth and Sixth Amendments ensure that the defendant ‘will never get more punishment than he bargained for when he did the crime,’ but they do not promise that he will receive ‘anything less’ than that.” Harris, 536 U.S. at 556-68, 122 S.Ct. 2406 (quoting Apprendi, 530 U.S. at 498, 120 S.Ct. 2348 (Scalia, J., concurring)).

Once an individual has been convicted by a jury beyond a reasonable doubt of the predicate facts of illegal conduct, triggering a statutory maximum penalty, a court may impose any sentence on the individual up to that maximum. Id. Judicial factfinding in the course of selecting a sentence within the permissible range does not implicate or offend the Fifth and Sixth Amendment rights to a jury trial and proof beyond a reasonable doubt. Blakely, 542 U.S. at 309, 124 S.Ct. 2531; Harris, 536 U.S. at 556-68, 122 S.Ct. 2406; Apprendi, 530 U.S. at 481-82, 120 S.Ct. 2348 (citing Williams v.

New York, 337 U.S. 241, 242-47, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949)); McMillan v. Pennsylvania, 477 U.S. 79, 89-90, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986). 2. The decision in Booker instantiates these principles. In Booker, a jury found the defendant guilty of possession with intent to distribute at least fifty grams of cocaine base, an offense that carried a maximum sentence of life imprisonment under the United States Code. 543 U.S. at 227, 125 S.Ct. 738 (citing 21 U.S.C. § 841(a)(1), (b)(1)(a)(iii)). The United States Sentencing Guidelines, however, prescribed a base imprisonment range of 210 to 262 months.

Id. (citing U.S. Sentencing Guidelines Manual §§ 2D 1.1(c)(4), 4A 1.1). During a sentencing hearing, the trial judge found by a preponderance of the evidence that the defendant had possessed an additional 566 grams of crack and had obstructed justice. Id. These findings increased the Guidelines imprisonment range to 360 months to life. Id. The judge then imposed a sentence commensurate with this range, of thirty years. Id. The Supreme Court reversed. Of central importance to its conclusion was the mandatory nature of the Guidelines. Id. at 233-35, 125 S.Ct. 738.

The Sentencing Reform Act required the district judge to impose a sentence within the “base” range recommended by the Guidelines, established solely by the facts of conviction, unless certain enumerated circumstances were found to be present. Id. (citing 18 U.S.C. § 3553(b)). In other words, upon conviction by a jury, the maximum punishment to which the individual was exposed was the highest point in the base range prescribed by the Guidelines. Id. The judge lacked authority to impose a higher sentence in the absence of additional findings of fact. Id.

These additional facts, under the reasoning of Apprendi, constitute “elements” of a “crime.” By raising the recommended Guidelines range, they authorized the district judge to impose a higher sentence than would be permissible under the Sentencing Reform Act based solely on the facts of conviction. Id. They increased the maximum sentence to which the defendant would otherwise be exposed upon conviction by a jury. Id. These facts are therefore properly classified as elements of a crime, subject to the rights to a jury trial and proof beyond a reasonable doubt. Id. (citing Apprendi, 530 U.S. at 481, 120 S.Ct.2348).

The final sentence imposed in Booker was nearly ten years more than the base range prescribed by the Guidelinés. Id. The range had been increased based on findings made by the sentencing judge, without submission to a jury. Id. This violated the defendant’s rights under the Sixth Amendment, as defined in Apprendi. This conclusion not only necessitated reversal of the defendant’s sentence; it cast doubt on the constitutionality of the federal sentencing regime as a whole. See id.

The Guidelines require that all facts relevant to sentencing be found by a judge based on information presented during a post-trial hearing. Id. There is no provision for a jury to make these determinations, nor any reasonable means to effect this result within the existing structure. Trial by jury is inherently incompatible with the Guidelines scheme. Id. The Court resolved this problem by returning to the basis of its holding: that the constitutional infirmity of the Guidelines was attributable to their mandatory application under the Sentencing Reform Act.

All members of the Court agreed that, if the Guidelines were merely advisory, the Sixth Amendment problem would fall away. Id. at 259, 120 S.Ct. 2348. Facts relevant to enhancements under the Guidelines would no longer increase the maximum punishment to which the defendant is exposed, but would simply inform the judge’s discretion as to the appropriate sentence. Id. These facts would then not be deemed “elements” of a “crime” and would not trigger the rights recognized in Apprendi. Id.

To achieve this result, the Court “sever[ed] and excise[d]” two statutory provisions: “the provision that requires sentencing courts to impose a sentence within the applicable Guidelines range (in the absence of circumstances that justify a departure), see 18 U.S.C. § 3553(b)(1),[] and the provision that sets forth standards of review on appeal, including de novo review of departures from the applicable .Guidelines range, see [18 U.S.C.] § 3742(e).[]” Booker, 543 U.S. at 259, 125 S.Ct. 738.

The excision of these provisions rendered the Guidelines advisory, freeing the trial judge to impose any sentence permitted under the United States Code regardless of the sentence recommended by the Guidelines. Id. The maximum legislatively authorized punishment to which the defendant is exposed was no longer the maximum prescribed by the Guidelines; instead, it is the maximum prescribed by the United States Code. Id. Therefore, findings of fact relevant to the Guidelines need not be submitted to a jury. Id. The Court noted that the “remainder of the Act ‘functionfs] independently.’ ” Id. (quoting Ala.

Airlines, Inc. v. Brock, 480 U.S. 678, 684, 107 S.Ct. 1476, 94 L.Ed.2d 661 (1987)). District courts must still conduct the full Guidelines analysis in every case. They must still resolve disputed issues of fact and explain the basis for any departures. The only change is that the final Guidelines range does not bind the district court, but merely serves as one of a number of factors to be considered in fashioning the ultimate sentence. Id. at 259-60, 125 S.Ct. 738. Of course, for Sixth Amendment purposes, this change makes all of the difference. See id. 3.

The Supreme Court in Booker did not address the applicability of the right to proof beyond a reasonable doubt in an advisory Guidelines system. This is easily explained: it had no reason to do so. The question presented in Booker was “[wjhether the Sixth Amendment is violated by the imposition of an enhanced sen-fence under the United States Sentencing Guidelines based on the sentencing judge’s determination of a fact ... .that was not found by the jury or admitted by the defendant.” Petition for a Writ of Certiora-ri, Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621.

The absence of discussion of the Fifth Amendment is not, as the dissent seems to believe, an implicit recognition that the right to proof beyond a reasonable doubt applies at sentencing. Rather, it simply reflects the limited scope of the grant of certiorari. There can be no question, in light of the holding of Booker and the reasoning of Apprendi, that the right to proof beyond a reasonable doubt does not apply to facts relevant to enhancements under an advisory Guidelines regime.

Like the right to a jüry trial, the right to proof beyond a reasonable doubt attaches only when the facts at issue have the effect of increasing the maximum punishment to which the defendant is exposed. Apprendi, 530 U.S. at 489-94, 120 S.Ct. 2348. The advisory Guidelines do not have this effect. They require the district judge to make findings of fact, but none of these alters the judge’s final sentencing authority. Booker, 543 U.S. at 233, 259, 125 S.Ct. 738. They merely inform the judge’s broad discretion. Id.

The sole legislative restrictions on the judge’s sentencing authority post -Booker are those found in the United States Code. The Code defines crimes and prescribes maximum sentences. It identifies the facts necessary to establish an offense and any aggravating circumstances (e.g., significant drug quantity, use of a firearm, injury to a victim) that increase the maximum punishment. These facts must be established beyond a reasonable doubt. Apprendi, 530 U.S. at 490, 120 S.Ct. 2348.

But, once these facts are found, triggering the statutory maximum, the judge may impose a sentence anywhere under that maximum without constitutional qualm. Blakely, 542 U.S. at 309, 124 S.Ct. 2531; Harris, 536 U.S. at 556-68, 122 S.Ct. 2406; Apprendi, 530 U.S. at 481-82, 120 S.Ct. 2348; Williams, 337 U.S. at 242-47, 69 S.Ct. 1079. By excising the provisions of the United States Code requiring mandatory application of the United States Sentencing Guidelines, the Supreme Court in Booker altered the constitutional impact of the Guidelines.

None of the facts relevant to enhancements or departures under the Guidelines can increase the maximum punishment to which the defendant is exposed. E.g., United States v. Tannis, 942 F.2d 196, 198 (3d Cir.1991); see also U.S. Sentencing Guidelines Manual § 5G1.1. The Due Process Clause thus affords no right to have these facts proved beyond a reasonable doubt. Harris, 536 U.S. at 558, 122 S.Ct. 2406 (“Judicial factfinding in the course of selecting a sentence within the authorized range does not implicate the ... reasonable-doubt component ] of the Fifth ... Amendment ].”).

This holding accords with other decisions addressing the issue. See, e.g., United States v. Cooper, 437 F.3d 324, 330 (3d Cir.2006); United States v. Vaughn, 430 F.3d 518, 525-26 (2d Cir.2005), cert. denied sub nom. Lindo v. United States, — U.S. -, 126 S.Ct. 1665, 164 L.Ed.2d 405 (2006); United States v. Morris, 429 F.3d 65, 72 (4th Cir.2005); United States v. Price, 418 F.3d 771, 788 (7th Cir.2005); United States v. Magallanez, 408 F.3d 672, 684-85 (10th Cir.), cert. denied, — U.S. -, 126 S.Ct. 468, 163 L.Ed.2d 356 (2005); United States v.

Pirani, 406 F.3d 543, 551 n. 4 (8th Cir.) (en banc), cert. denied, — U.S. -, 126 S.Ct. 266, 163 L.Ed.2d 239 (2005); United States v. Yagar, 404 F.3d 967, 972 (6th Cir.2005); United States v. Mares, 402 F.3d 511, 519 & n. 6 (5th Cir.), cert. denied, — U.S. -, 126 S.Ct. 43, 163 L.Ed.2d 76 (2005); United States v. Duncan, 400 F.3d 1297, 1304-05 (11th Cir.), cert. denied, — U.S. -, 126 S.Ct. 432, 163 L.Ed.2d 329 (2005). 4.

The dissent rejects the rationale of these decisions and proposes a novel standard under which the right to proof beyond a reasonable doubt would attach to facts relevant to the Guidelines when those facts constitute a “separate offense.” It finds support for this position in Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), and Apprendi. This reliance is misplaced.

The question presented in Jones was whether a provision of the federal carjacking statute raising the maximum penalty for crimes involving “serious bodily injury” should be interpreted as an element of the crime, to which the right to proof beyond a reasonable doubt applies, or as a mere sentencing enhancement. 526 U.S. at 229, 119 S.Ct. 1215.

The Supreme Court found, based on comparisons with other state and federal provisions defining aggravated robbery and assault as separate offenses, that “Congress probably intended serious bodily injury to be an element defining an aggravated form of the crime.” Id. at 236,119 S.Ct. 1215. On this basis, it held that the fact of “serious bodily injury” must be submitted to a jury and proved beyond a reasonable doubt. Id. at 232-33, 251-52,119 S.Ct. 1215. Jones was a statutory

interpretation case. The comparison of the “serious bodily injury” provision to other, separate offenses was merely a means of gauging Congress’s probable intent. Id. at 282-36, 119 S.Ct. 1215. It was not a statement of constitutional doctrine and did not purport to base the right to proof beyond a reasonable doubt on whether the facts at issue constitute an independent crime. Id. The only mention of constitutional rights in Jones is in a subsidiary context, within a discussion of the interpretative canon of avoidance. Id. at 239-40, 119 S.Ct. 1215.

The Supreme Court noted that the “serious bodily injury” provision of the carjacking statute increased the maximum punishment to which the defendant was exposed and therefore likely implicated the defendant’s rights to a jury trial and proof beyond a reasonable doubt, regardless of whether the provision was intended to operate as an “element” or an “enhancement.” Id. at 239-52, 119 S.Ct. 1215. The Court avoided the issue, however, by finding that Congress anticipated that the provision would stand as a separate “element,” to which these rights undisputedly applied. Id. at 251-52, 119 S.Ct. 1215.

There is no question of statutory

interpretation here. The Guidelines were clearly intended by Congress to operate as sentencing enhancements, not as elements of a crime. The lack of clarity regarding congressional intent that compelled the Supreme Court in Jones to examine whether “serious bodily injury” could be analogized to an independent crime is simply not present here. This is a constitutional case, governed by the rule of Apprendi: The rights to a jury trial and to proof beyond a reasonable doubt attach to those facts that increase the maximum punishment to which the defendant is exposed. 530 U.S. at 490, 120 S.Ct. 2348.

This standard is not based upon the legislature’s definition of a fact as an “element” or “enhancement,” Id. at 494, 120 S.Ct. 2348, or upon a formalistic “multifactor parsing of statutes,” Id. at 501, 120 S.Ct. 2348 (Thomas, J., concurring). Nor does it depend on whether the facts in question can be described as a “separate offense,” a concept that appears nowhere in Supreme Court jurisprudence in this field except in the statutory discussion of Jones. 526 U.S. at 232-36, 119 S.Ct. 1215.

The sole question under Apprendi is whether the facts at issue increase the maximum punishment to which the defendant is exposed. 530 U.S. at 494, 120 S.Ct. 2348 (“[T]he relevant inquiry is one not of form, but of effect — does the required finding expose the defendant to a greater punishment than that authorized by the jury’s guilty verdict?”). Facts relevant to application of the Guidelines — whether or not they constitute a “separate offense” — do not have this effect. E.g., Tannis, 942 F.2d at 198; see also U.S. Sentencing Guidelines Manual § 5G1.1.

They inform the district court’s discretion without limiting its authority. They therefore should not be treated as “elements” of a “crime” under the rationale of Apprendi and do not implicate the rights to a jury trial and proof beyond a reasonable doubt. 530 U.S. at 490, 494, 120 S.Ct. 2348. 5. The District Court in this case concluded that the burden of proof for facts relevant to sentencing was preponderance of the evidence. This standard is suggested by the Guidelines, see U.S.

Sentencing Guidelines Manual § 6A1.3 cmt., is not precluded by the Fifth or Sixth Amendments, see Booker, 543 U.S. at 259, 125 S.Ct. 738, and has been approved by this Court, see, e.g., United States v. Mobley, 956 F.2d 450, 455 (3d Cir.1992). We held in United States v.

Kikumura, 918 F.2d 1084 (3d Cir.1990), that certain sentencing enhancements under the Guidelines — those that significantly increase the recommended sentence and “can fairly be characterized as ‘a tail which wags the dog of the substantive offense’ ” — must be proved by “clear and convincing evidence.” Id. at 1100-01 (quoting McMillan, 477 U.S. at 88, 106 S.Ct. 2411). The jurisprudential basis of this holding, grounded in dictum from McMillan v.

Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), has since been disavowed by the Supreme Court, see Blakely, 542 U.S. at 307-08, 124 S.Ct. 2531 (citing McMillan, 477 U.S. at 88, 106 S.Ct. 2411), and plainly conflicts with the principles underlying Booker and its predecessors, see 543 U.S. at 259-60, 125 S.Ct. 738; see also Appren-di, 530 U.S. at 481-82, 120 S.Ct. 2348 (noting that factfinding in the course of selecting a sentence within the statutory range does not implicate the rights to a jury trial and proof beyond a reasonable doubt).

We will therefore take the opportunity to overrule this aspect of Kikumu-ra. See Mennen Co. v. Atlantic Mut. Ins. Co., 147 F.3d 287, 294 n. 9 (3d Cir.1998) (noting that a panel of this Court may overrule the holding of a prior panel that is in direct conflict with intervening Supreme Court precedent). We will affirm the District Court’s decision to apply the preponderance standard to all facts relevant to the Guidelines, including the finding that Grier committed aggravated assault under Pennsylvania law. B.

That the District Court applied an acceptable burden of proof does not, of course, mean that its findings of fact should be upheld. We have traditionally reviewed factual findings relevant to sentencing under a “clearly erroneous” standard. See, e.g., United States v. Lennon, 372 F.3d 535, 538 (3d Cir.2004). The parties apparently assume that the same standard should govern in this case. However, the issue is not so clear cut. The Supreme Court in Booker excised subsection (

e) of 18 U.S.C. § 3742, the provision of the United States Code that defined the appropriate standard of review for issues relevant to sentencing. 543 U.S. at 259, 125 S.Ct. 738. It held that appellate courts should thereafter review the ultimate sentence for “reasonableness.” Id. at 260-63, 125 S.Ct. 738. Unfortunately, it did not specify whether the clearly erroneous standard should continue to apply to factual findings bearing on the advisory Guidelines range. 1. Three options for a standard of review are available.

First, courts of appeals could simply refuse to review factual findings relevant to the Guidelines on the ground that they do not govern the district court’s final discretionary sentence. See United States v. Mickelson, 433 F.3d 1050, 1052-55 (8th Cir.2006). Second, they could review factual determinations for “reasonableness,” the standard suggested by Booker for review of the ultimate sentence. See 543 U.S. at 261, 125 S.Ct. 738. Third, courts could continue to review findings for “clear error.” See Lennon, 372 F.3d at 538.

The first alternative, under which appellate courts would decline to review factual findings relevant to the Guidelines, is clearly untenable. District courts are required, under 18 U.S.C. § 3553(a), to consider the range prescribed by the Guidelines in imposing sentence on a defendant. Id. § 3553(a)(4); see also Booker, 543 U.S. at 261, 125 S.Ct. 738; Cooper, 437 F.3d at 329-32. The only manner by which this range can be determined is through a series of factual findings, adjusting the defendant’s offense level and criminal history category.

An error in these findings will result in an error in the recommended sentencing range and, thus, will necessarily impact the district court’s assessment of the factors of 18 U.S.C. § 3553(a). Appellate review of the district court’s factual conclusions is essential to ensure compliance with statutory mandates. See United States v. Haack, 403 F.3d 997, 1003 (8th Cir.), cert. denied, — U.S. -, 126 S.Ct. 276, 163 L.Ed.2d 246 (2005). The second alternative, under which courts of appeals would review findings of the district court for “reasonableness,” is also unfeasible.

The Supreme Court explained in Booker that review for “reasonableness” is meant to assess the ultimate sentence imposed: to determine whether the sentencing judge gave meaningful consideration to the factors of 18 U.S.C. § 3553(a). 543 U.S. at 260-61, 125 S.Ct. 738. Nothing in Booker suggests that the same standard is to be applied to evaluate the quantum of evidence offered in support of a particular finding of fact, even one that played a role in the court’s final sentence.

Indeed, application of the “reasonableness” standard, with its broad focus on policy goals, would be incompatible with review of factual findings. See United States v. Mashek, 406 F.3d 1012, 1015 (8th Cir.2005). Review for clear error offers the sole viable approach. The Supreme Court in Booker excised the “clearly erroneous” standard from 18 U.S.C. § 3742(

e) only because other aspects of that subsection included impermissible references to a mandatory Guidelines scheme. 543 U.S. at 260, 125 S.Ct. 738. Just as the Supreme Court interposed the “reasonableness” standard to fill in the gap for review of the ultimate sentence, the clearly erroneous standard fills in the gap for review of particular factual determinations. Other courts of appeals have unanimously, if implicitly, adopted this approach. United States v. Robinson, 433 F.3d 31, 38 (1st Cir.2005); United States v. Castillo, 430 F.3d 230, 238-39 (5th Cir.2005); United States v.

Garcia, 413 F.3d 201, 221-22 (2d Cir.2005); United States v. Davidson, 409 F.3d 304, 310 (6th Cir.2005); United States v. Mashek, 406 F.3d 1012, 1016 (8th Cir.2005); United States v. Bothun, 424 F.3d 582, 585-86 (7th Cir.2005); United States v. Smith, 424 F.3d 992, 1015 (9th Cir.2005), cert. denied, — U.S. -, 126 S.Ct. 1477, 164 L.Ed.2d 257 (2006); United States v. Clark, 415 F.3d 1234, 1246 (10th Cir.2005); United States v. Ebersole, 411 F.3d 517, 536 (4th Cir.2005), cert. denied, — U.S. -, 126 S.Ct. 1142, 163 L.Ed.2d 1003 (2006); United States v. Crawford, 407 F.3d 1174, 1177 (11th Cir.2005).

Indeed, we have previously suggested that the clearly erroneous standard would continue to apply post Booker. See United States v. Miller, 417 F.3d 358, 362-63 (3d Cir.2005) (“Nothing in Booker ... necessarily calls into question the correctness of the District Court’s factual findings or procedural decisions at the resentencing, or, for that matter, this court’s [previous] approval thereof.”); United States v. Pojilenko, 416 F.3d 243, 247 (3d Cir.2005) (reviewing factual findings relevant to sentencing for clear error). Despite the excision of subsection (

e) of 18 U.S.C. § 3742, this Court will continue to review factual findings relevant to the Guidelines for clear error and to exercise plenary review over a district court’s

interpretation of the Guidelines. See, e.g., Robinson, 433 F.3d at 35. “A finding is ‘clearly erroneous’ when[,] although there is evidence to support it, the reviewing [body] on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Trust for S. Cal., 508 U.S. 602, 622, 113 S.Ct. 2264, 124 L.Ed.2d 539 (1993) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)).

A sentence imposed as a result of a clearly erroneous factual conclusion will generally be deemed “unreasonable” and, subject to the doctrines of plain and harmless error, will result in remand to the district court for resentencing. E.g., Robinson, 433 F.3d at 35; see also Booker, 543 U.S. at 268, 125 S.Ct. 738. 2. The challenged finding in this case, that Grier committed aggravated assault, is not clearly erroneous.

Aggravated assault is defined under Pennsylvania law as an “attempt[ ] to cause serious bodily injury to another ... under circumstances manifesting extreme indifference to the value of human life” or an “attempt ] to cause ... bodily injury to another with a deadly weapon.” 18 Pa. Cons.Stat. § 2702(a). An “attempt” may be found “when, with intent to commit a specific crime, [the individual] does any act which constitutes a substantial step toward the commission of that crime.” Id. § 901(a); see also Commonwealth v. Hall, 574 Pa. 233, 830 A.2d 537, 541-42 (2003).

The evidence presented during the sentencing hearing supports a finding that Grier attempted to cause bodily injury to Navarro with a deadly weapon. Navarro testified that he did not enter the fight with any weapons. The firearm was produced in some manner during the course of the altercation, and other individuals warned Navarro that Grier had a gun. Soon thereafter, the gun discharged. When the two combatants stood up, Grier was holding the weapon, aimed at Navarro. Grier then pointed the gun toward the sky, fired a single shot, and left the scene.

The precise circumstances of the fight are matters of reasonable speculation. It is arguable — and is argued by Grier on appeal — that the record shows that the gun accidentally dropped from his pocket during the altercation, and that his subsequent actions were intended merely to dissuade Navarro from continuing the fight. An equally plausible explanation of the evidence, however, is that Grier intentionally pulled the gun from his clothing and, while the two men were on the ground, fired a shot in an attempt to harm or kill Navarro.

He thereafter rose and aimed the gun once again at Navarro but, for whatever reason, decided to fire the weapon skyward and withdraw from the fight. The District Court was entitled to credit the latter version. See, e.g., Coalition To Save Our Children v. Bd. of Educ., 90 F.3d 752, 759 (3d Cir.1996). Despite defense counsel’s protestations, and despite the absence of “direct” evidence that Grier voluntarily produced the gun, see United States v.

Bycer, 593 F.2d 549, 551 (3d Cir.1979) (“The fact that evidence is categorized as circumstantial does not make it less probative.”), the testimony from Navarro could reasonably be interpreted as showing that Grier purposefully pulled the firearm during the fight and fired at Navarro with the intent to cause serious bodily harm. This supports the conclusion that Grier committed aggravated assault, warranting a four-level enhancement under the Guidelines. See U.S. Sentencing Guidelines Manual § 2K2.1(b)(5).

Grier’s other claims, that he has established self-defense and that the offense should be classified as simple assault by mutual consent, fail for similar reasons. Pennsylvania law recognizes self-defense as a justification for a crime only if: (

a) the actor was free from fault in provoking or continuing the difficulty which resulted in the use of deadly force; (

b) the actor reasonably believed that he was in imminent danger of death or serious bodily injury and that there was a necessity to use such force in order to save himself or others; and (

c) the actor did not violate any duty to retreat or to avoid the danger. Commonwealth v. Harris, 550 Pa. 92, 703 A.2d 441, 449 (1997); see also 18 Pa. Cons. Stat. § 505(b)(2) (“The use of deadly force is not justifiable under this

section unless the actor believes that such force is necessary to protect himself against death[ or] serious bodily injury....”). Grier admittedly played a role in starting the altercation by telling Navarro: “[L]et the problem be right here and now.” And the record does not mandate a finding that Grier believed that he was “in imminent danger of death or serious bodily injury” during the fight, or that “there was a necessity to use such force in order to save himself.” See Harris, 703 A.2d at 449.

There is no reason, let alone a compelling one, to conclude that the District Court erred in refusing to recognize Grier’s claim of self-defense. Nor did the District Court err in declining to characterize the crime as “simple assault by mutual consent.” This offense is a lesser-graded version of simple assault, applicable when both parties share equal responsibility for commencing the underlying fight or scuffle. 18 Pa. Cons. Stat. § 2701(b)(1). There is, however, no similar exception for aggravated assault. See id. § 2702.

The District Court’s finding that Grier had committed aggravated assault rendered the mutual consent provision inoperative. C. The final question in this case, and the ultimate inquiry in the review of any sentence post-Booker, is whether the sentence was “reasonable.” The touchstone of “reasonableness” is whether the record as a whole reflects rational and meaningful consideration of the factors enumerated in 18 U.S.C. § 3553(a). Cooper, 437 F.3d at 329-32; see also Booker, 543 U.S. at 261, 125 S.Ct. 738.

It must be clear that the district court understood and reasonably discharged its obligation to take all of the relevant factors into account in imposing a final sentence. E.g., Cooper, 437 F.3d at 329-32. The record in this case is simply too sparse to allow us to conclude that the District Court honored its statutory duty. The only explanation of the sentence provided by the District Court was: “The Court believes that 100 months is reasonable in view of the considerations of

section 3553(a).” This statement, as a justification of the sentence, leaves much to be desired. It is devoid of substantive content and offers little assistance to an appellate tribunal reviewing the sentence. More elaboration is necessary. The Sentencing Reform Act mandates that the District Court “consider” the factors of 18 U.S.C. § 3553(a). Id. The record must disclose meaningful consideration of the relevant statutory factors and the exercise of independent judgment, based on a weighing of those factors, in arriving at a final sentence. Cooper, 437 F.3d at 329-32.

The rationale by which a district court reaches a final sentence is important. It offers the defendant, the government, the victim, and the public a window into the decision-making process and an explanation of the purposes the sentence is intended to serve. It promotes respect for the adjudicative process, by demonstrating the serious reflection and deliberation that underlies each criminal sentence, and allows for effective appellate oversight. We will remand this case to allow the District Court to resentence the defendant.

We do not suggest that the original sentence reflects anything less than the sound judgment of the district judge, or that the final sentence should necessarily differ from the one previously imposed. The nature of the final sentence is, as always, a matter within the discretion of the District Court. We do ask, however, that the District Court explain its decision on the record, specifically by reference to the factors of 18 U.S.C. § 3553(a). III. The opinion in Booker did not alter the burden of proof or the standard of review for findings of fact relevant to sentencing.

But it did, by rendering the United States Sentencing Guidelines advisory rather than mandatory, place a premium on thorough explication of sentencing decisions. A reasoned and rational justification for a sentence is necessary to assure the parties of the fairness of the proceedings, to instill public confidence in the judicial process, and to allow for effective appellate review. The explanation offered by the District Court in this ease fell short of this goal. It simply recites the necessity of compliance with 18 U.S.C. § 3553(

a) without expressly considering the relevant statutory factors. While the original sentence was most likely the product of comprehensive and thoughtful deliberation, the record does not reflect that fact. We will remand this case to allow the District Court to reconsider the factors of 18 U.S.C. § 3553(

a) on the record and then to resentence the defendant. The judgment of sentence will be vacated and this case will be remanded to the District Court for further proceedings in accordance with this opinion. .

Pennsylvania law defines aggravated assault as follows: A person is guilty of aggravated assault if he: (1) attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life; [or] (4) attempts to cause or intentionally or knowingly causes bodily injury to another with a deadly weapon.... 18 Pa. Cons.Stat. § 2702(a). . Pennsylvania law defines simple assault, including the exception for mutual consent, as follows: (

a) Offense defined. — A person is guilty of assault if he: (1) attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another; (2) negligently causes bodily injury to another with a deadly weapon; [or] (3)attempts by physical menace to put another in fear of imminent serious bodily injury---- (

b) Grading. — Simple assault is a misdemeanor of the second degree unless committed ... in a fight or scuffle entered into by mutual consent, in which case it is a misdemeanor of the third degree.... 18 Pa. Cons.Stat. § 2701. .

Section 3553(b)(1) provided, in pertinent part, as follows: [T]he court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4) [prescribed by the United States Sentencing Guidelines] unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described. 18 U.S.C. § 3553(b)(1). .

Section 3742(

e) provided, in pertinent part, as follows: Upon review of the record, the court of appeals shall determine whether the sentence— (1) was imposed in violation of law; (2) was imposed as a result of an incorrect application of the sentencing guidelines; (3) is outside the applicable guideline range, and .. . the sentence departs from the applicable guideline range based on a factor that ... does not advance the objectives set forth in

section 3553(a)(2)[,] ... is not authorized under

section 3553(b)[, or] ... is not justified by the facts of the case; or ... the sentence departs to an unreasonable degree from the applicable guidelines range, having regard for the factors to be considered in imposing a sentenced] ... or (4) was imposed for an offense for which there is no applicable sentencing guideline and is plainly unreasonable. The court of appeals shall give due regard to the opportunity of the district court to judge the credibility of the witnesses, and shall accept the findings of fact of the district court unless they are clearly erroneous and, except with respect to determinations under subsection (3)(

A) or (3)(B), shall give due deference to the district court's application of the guidelines to the facts. With respect to determinations under subsection (3)(

A) or (3)(B), the court of appeals shall review de novo the district court’s application of the guidelines to the facts. 18 U.S.C. § 3742(e). . The District Court did not make this finding on the record, but adopted the conclusion of the presentence report. See United States v.

Collado, 975 F.2d 985, 990 (3d Cir.1992) (“Where ... the district court makes no independent findings of fact in relation to sentencing issues, but instead adopts the reasons set forth by the probation officer in the presen-tence investigation report, we view the report as containing the only findings of fact that support the court's sentencing decision.”). .

Defense counsel argues that the statements by these bystanders were “classic hearsay.” This may be true, but the Federal Rules of Evidence do not apply at sentencing, see Fed.R.Evid. 1101(d)(3); see also Kikumura, 918 F.2d at 1099-1100, and counsel does not argue that Navarro's recollection of the statements was so unreliable as to preclude admission under the liberal standards governing these proceedings, see U.S.

Sentencing Guidelines Manual § 6A1.3(a) (“In resolving any dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy.”); see also 18 U.S.C. § 3661 (“No limitation shall be placed on the information ... which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.”); United States v.

Paulino, 996 F.2d 1541, 1547 (3d Cir.1993) ("Prior to the Sentencing Guidelines, the principle that sentencing judges could consider evidence at sentencing that would not be admissible at trial was firmly established!,] • • • subject to a due process standard of reliability.”). See also United States v. Martinez, 413 F.3d 239, 243 (2d Cir.2005) ("Booker ... provide[s] no basis to question prior Supreme Court decisions that expressly approved the consideration of out-of-court statements at sentencing.”), cert. denied, - U.S. -, 126 S.Ct. 1086, 163 L.Ed.2d 902 (2006). .

At the time of the altercation, Grier was suffering from migraines and other adverse effects of recent surgery to remove a brain tumor; however, there is no evidence suggesting that these conditions rendered Grier at risk of serious injury or death from Navarro's attack. . These factors include: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed— (

A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (

B) to afford adequate deterrence to criminal conduct; (

C) to protect the public from further crimes of the defendant; and (

D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; (3) the kinds of sentences available; (4) the kinds of sentence and the sentencing range established for ... the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines ... issued by the Sentencing Commission^] ... (5) any pertinent policy statement ... issued by the Sentencing Commission^] ... (6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and (7) the need to provide restitution to any victims of the offense. 18 U.S.C. § 3553(a). .

An objection to the reasonableness of the final sentence will be preserved if, during sentencing proceedings, the defendant properly raised a meritorious factual or legal issue relating to one or more of the factors enumerated in 18 U.S.C. § 3553(a). See Cooper, 437 F.3d at 329 (citing United States v. Cunningham, 429 F.3d 673, 679 (7th Cir.2005)). The government does not argue in this case that Grier failed to preserve his challenge to the sentence imposed by the District Court.