164
Stevens, J., dissenting
In my judgment neither our prior cases nor the text of the statute warrants this perverse result. And the vigor of the debate among judges in the Courts of Appeals on this basic issue belies the ease with which the Court addresses it, without hearing oral argument or allowing the parties to fully brief the issues.3
was inappropriate because it was based on conduct that the judge found only by a preponderance of the evidence. Since Watts' base offense level was increased by this evidence, I believe it should have been proved beyond a reasonable doubt.
3 Although the Court's decision suggests that the approach taken by the Ninth Circuit in these cases breaks from settled law in every other Circuit, the opinion ignores the fact that respected jurists all over the country have been critical of the interaction between the Sentencing Guidelines' mechanical approach and the application of a preponderance of the evidence standard to so-called relevant conduct. See, e. g., United States v. Silverman, 976 F. 2d 1502, 1519, 1527 (CA6 1992) (Merritt, C. J., dissenting); id., at 1533 (Martin, J., dissenting); United States v. Concepcion, 983 F. 2d 369, 389, 396 (CA2 1992) (Newman, C. J., concurring) ("A just system of criminal sentencing cannot fail to distinguish between an allegation of conduct resulting in a conviction and an allegation of conduct resulting in an acquittal"); United States v. Galloway, 976 F. 2d 414, 436 (CA8 1992) (Bright, J., dissenting, joined by Arnold, C. J., Lay, J., and McMillian, J.); United States v. Restrepo, 946 F. 2d 654, 663 (CA9 1991) (Pregerson, J., dissenting, joined by Hug, J.); id., at 664 (Norris, J., dissenting, joined by Hug, J., Pregerson, J., and D. W. Nelson, J.). Cf. United States v. Lanoue, 71 F. 3d 966, 984 (CA1 1995) ("Although it makes no difference in this case, we believe that a defendant's Fifth and Sixth Amendment right to have a jury determine his guilt beyond a reasonable doubt is trampled when he is imprisoned (for any length of time) on the basis of conduct of which a jury has necessarily acquitted him"). See also Martin, The Cornerstone Has No Foundation: Relevant Conduct in Sentencing and the Requirements of Due Process, 3 Const. L. J. 25, 34-36 (1993); Beale, Procedural Issues Raised by Guidelines Sentencing: The Constitutional Significance of the "Elements of the Sentence," 35 Wm. & Mary L. Rev. 147, 157-158 (1993); Herman, The Tail that Wagged the Dog: Bifurcated Fact-Finding under the Federal Sentencing Guidelines and the Limits of Due Process, 66 S. Cal. L. Rev. 289 (1992); Heaney, The Reality of Guidelines Sentencing: No End to Disparity, 28 Am. Crim. L. Rev. 161, 208-220 (1991).
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