The remaining circuit split over due process burden-of-proof requirements

The Eighth Circuit decision today in US v. Garth, No. 07-2330 (8th Cir. Sept. 3, 2008) (available here), highlights in this footnote that there is still a split within the circuit over whether, even after Booker made the guidelines advisory, due process requires certain sentencing facts to be proven by a standard of proof higher than merely a preponderance of the evidence:

The Third and Seventh Circuits have held that by rendering the Guidelines advisory, the [Supreme] Court has remedied any due process violation that occurs when sentencing facts found by a preponderance of the evidence are used to calculate an advisory Guidelines’ range that causes an extreme increase in the length of the defendant’s sentence.  United States v. Fisher, 502 F.3d 293, 308 (3d Cir. 2007)United States v. Reuter, 463 F.3d 792, 793 (7th Cir. 2006).  We appear to have summarily dismissed the argument that the tail can no longer wag the dog now that the the Guidelines are advisory. United States v. Archuleta, 412 F.3d 1003, 1007 (8th Cir. 2005) (“Nothing in Booker changes the interpretation of McMillan in our post-Apprendi cases.”).  The Ninth Circuit agrees with our post-Booker conclusion and continues to apply a several factor test to determine whether sentencing facts had an “extremely disproportionate” effect on a sentence. United States v. Staten, 466 F.3d 708, 720 (9th Cir. 2006).