Given latest SCOTUS review of civil proof burdens, still wondering about criminal sentence increase standards

The Supreme Court unanimously ruled yesterday in E.M.D. Sales, Inc. v. Carrera, No. 23-217(S. Ct. Jan. 15, 2025) (available here), that a showing under the Fair Labor Standards Act calls for the “usual standard of proof in civil litigation [of] preponderance of the evidence [rather than a] more demanding standard, such as clear and convincing evidence.”  The opinion is not surprising, but still struck me as notable in how the Court discusses its precedents sometimes calling for a “more demanding standard” is to be applied in some civil litigation:

Second, courts likewise must apply a heightened standard of proof when the Constitution requires one . For example, the Court has mandated a clear-and-convincingevidence standard in certain First Amendment cases.  See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254, 285– 286 (1964); Gertz v. Robert Welch, Inc., 418 U.S. 323, 342 (1974).  The Court has also held that the Due Process Clause necessitates a heightened standard in some cases.  In Addington v. Texas, for example, the Court ruled that involuntary civil commitment constitutes such a “significant deprivation of liberty” by the government that “due process requires the state to justify confinement by proof more substantial than a mere preponderance of the evidence.” 441 U.S. 418, 425–427 (1979).  And in Santosky v. Kramer, the Court held the same with respect to the government’s termination of parental rights: “Before a State may sever completely and irrevocably the rights of parents in their natural child, due process requires that the State support its allegations by at least clear and convincing evidence.” 455 U.S. 745, 747–748 (1982).

Third, under this Court’s precedents, a heightened standard of proof may be appropriate in certain other “uncommon” cases.  Price Waterhouse v. Hopkins, 490 U.S. 228, 253 (1989) (plurality opinion).  These cases “ordinarily” arise “when the government seeks to take unusual coercive action — action more dramatic than entering an award of money damages or other conventional relief — against an individual.” Ibid.  For example, the Court has held that the government must satisfy a clear-and-convincing-evidence standard in order to take away a person’s citizenship.  See Nishikawa v. Dulles, 356 U.S. 129, 137–138 (1958) (expatriation); Schneiderman v. United States, 320 U.S. 118, 122–123 (1943) (denaturalization).

This latest SCOTUS discussion is clearly just about civil matters, where we generally assume procedural protections are to be less rigorous for litigants than when the government is seeking to impose criminal sancations.  And yet, as sentencing fans know, the burden of proof at sentencing is just the civil floor of preponderance of the evidence.  Even though federal guideline sentencing findings can often be the basis to increase federal prison terms by years or even decades, and even though extended imprisonment surely involves a “a significant deprivation of liberty” and a “dramatic” form “coercive action” by the government,” the Supreme Court has left in place precedents that there is no heightened standard of proof (or really just the traditional criminal standard) at sentencing.  Sigh.