United States v. Eddie Lee Galloway

976 F.2d 414, 1992 U.S. App. LEXIS 22215, 1992 WL 224832

• Court: Court of Appeals for the Eighth Circuit
• Decided: September 17, 1992
• Docket: 90-3034
• Status: Published

Opinions

JOHN R. GIBSON, Circuit Judge,

with whom FAGG, BOWMAN, WOLLMAN, MAGILL, LOKEN and HANSEN, Circuit Judges, join.

This case presents the issues of whether sentencing by considering relevant conduct, which has been called the cornerstone of the United States Sentencing Guidelines, is authorized by statute and permitted by the United States Constitution. The district court sentenced Eddie Lee Galloway to twenty-four months based on a single count of theft from interstate shipment under 18 U.S.C. § 659 (1988) after it held that the Constitution prevented it from considering other uncharged property theft offenses. A panel of this court affirmed the sentence without reaching the constitutional arguments, but held that consideration of the uncharged offenses under the relevant conduct guideline, United States Sentencing Commission, Guidelines Manual, § lB1.3(a)(2) (Nov.1991), exceeded the statutory authority granted to the Sentencing Commission. We have heard the case en banc and hold that section lB1.3(a)(2) is authorized by statute and does not violate the constitutional rights to indictment, jury trial, and proof beyond a reasonable doubt.

We recite the facts essentially as recounted by the panel in our earlier decision, United States v. Galloway, 943 F.2d 897 (8th Cir.1991), vacated, Order of November 20, 1991, adding other facts as we deem necessary. Galloway and W.J. Young were charged in a two-count indictment with stealing a truck-load of tires and transporting a stolen vehicle in interstate commerce on March 22,1990. Galloway pled guilty to count one, theft from interstate shipment. The statutory maximum sentence for this offense is ten years. 18 U.S.C. § 659. Count two, charging transportation of a stolen motor vehicle in interstate commerce, in violation of 18 U.S.C. § 2312 (1988), was dismissed pursuant to a plea agreement. The latter charge would have called for a maximum penalty of five years.

The presentence report (PSR) valued the stolen goods at $37,000. PSR IMF 20-21. Under the Guidelines, this amount ordinarily would have called for a base offense level of 10 and a sentencing range of 21-27 months for Galloway, based on Criminal History Category V. U.S.S.G. § 2B1.1; U.S.S.G. Ch. 5, Pt. A. The PSR, however, alleged that, “[f]rom December, 1988, through March 22, 1990, ... Galloway participated in an organization which stole approximately $1,009,950 in stolen goods which were moving in interstate commerce.” PSR ¶[ 11. It listed seven separate interstate property offenses for which the government had not charged Galloway and included these offenses in the sentencing calculation. Id. ¶¶ 13-19. Each offense involved the theft of truckloads of goods, which included shoes, clocks, tires, televisions, and baseball cards.¹ Id. The PSR also recommended enhancement for Galloway’s alleged leadership role in offenses that required more than minimal planning. Id. ¶ 26. These adjustments nearly tripled Galloway’s sentencing range. They put Galloway at offense level 19 with a criminal history category of VI, and called for a sentence of 63-78 months.²

Galloway objected. He contended that the alleged uncharged conduct could not be used to calculate his sentencing range under section lB1.3(a)(2) of the Guidelines. The district court agreed, after making the following observation:

The Court notes that yesterday it sentenced Mr. Galloway’s co-defendant, Mr. W.J. Young, to five months imprisonment with two years of supervised release. Mr. Young had pled guilty to Count I of a two count indictment and the Government had moved the dismissal of Count II. The same situation that has occurred here....

I also note that the presentence reports in the two cases contain much identical language; indeed, the paragraphs that you talk about, 13 through 20 [detailing charged and uncharged conduct] are identical....

Now if the facts contained in the pre-sentence report are true, then it is clear that the Defendant Young and Defendant Galloway are really poles apart in terms of their culpability, at least to the degree of their involvement in criminal activity. But the Government has chosen to place identical charges against these two defendants. It charged Mr. Young with the only crime that he committed, at least as reflected by the pre-sentence report — that is, the March 22, 1990 theft.

But the Government has charged Mr. Galloway with only one of eight different crimes which it says he committed, and that was the least serious of the ones mentioned in the report. And the only crime, of course, that Mr. Galloway has ;pled guilty to is the one in Count /— that is, the one that Mr. Young pled guilty to — but I gather the Government wishes the Court to sentence Mr. Galloway as if it had charged him with the eight thefts exceeding $1 million in value and as if he had been convicted of all those charges.

Now this is a question. The Government could have charged him with all the criminal conduct that they mention in the report and he could have pled guilty or not guilty, and if he had pled not guilty he could have been tried and, if convicted, we would not be dealing with these problems. It would be absolutely clear what the factual basis for the sentence should be. But the Government didn’t choose to follow that path, and I gather it’s because of the sentencing guideline laws. I don’t think the Government views Mr. Galloway and Mr. Young as equal in culpability. I’m just getting the impression — I may be wrong — they are saying, “Why should we bother? Under the guidelines if he pleds [sic] guilty to one of these, then we will ask the Court to sentence him as if he had been convicted of all of them,” and that, they say, is what the guidelines call for. And they may be right, but I am resisting to a certain extent that idea.

Sent. Tr. at 10-13 (emphasis added).

The district court went on to hold section lB1.3(a)(2) unconstitutional as applied, reciting the following rationale:

[I]f you look at Amendment V to the Constitution you see that, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury.”

Now it says a crime, and the Supreme Court has interpreted crimes to mean anything that might subject one to the possibility of imprisonment for more than six months. And it also says no person shall be held to answer. Well, is Mr. Galloway being held to answer for that conduct here if it’s established his sentence will be increased five, six years? Yes, I think if that crime is proved [at the sentencing hearing], he will be held to answer here.

Amendment VI says: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” In all criminal prosecutions. Are we engaged in a criminal prosecution here, or is it some sort of legerdemain? Are we converting this crime into a sentencing factor? It also says — that is, Amendment VI — that he has a right to be informed of the nature and cause of the accusation. Of course, that would have been done if Amendment V had been followed.

I am going to conclude as a matter of law that in this case the Government may not, in the posture of this record, enhance the sentence of the defendant by proving by a preponderance of the evidence the conduct and acts referred to in paragraphs 13 through 19 because I feel it would violate the defendant’s constitutional rights. What we have here is what I have referred to as the Russianiz-ing of our Constitution. The language is quite clear, but we can, by sophistry or otherwise treat it and ignore it and that’s what happened in other countries. I don’t want to see it happen here.

Sent. Tr. at 28-29. Accordingly, the court refused to permit the government to prove the uncharged conduct.³

The district court determined that Galloway’s base offense level of four should be adjusted by six points to reflect the $37,000 worth of property involved in the charged offense. Id. at 30. The district court found that an additional two-point upward adjustment was required because there was more than minimal planning, but that the offsetting two-level downward adjustment was appropriate because of Galloway’s acceptance of responsibility. The court also reduced Galloway’s criminal history classification from YI to V. It found that the PSR had incorrectly calculated this element by relying on the uncharged conduct to determine that Galloway’s offense behavior occurred while he was on parole and within two years of his imprisonment for a prior conviction. Id. at 31. Galloway’s total offense level of 10 with a criminal history category of V called for a sentencing range of 21 to 27 months’ imprisonment, and the district court sentenced Galloway to 24 months. Id. at 32.

On appeal, the panel of this court refused to reach the constitutional issues, but held that the United States Sentencing Commission exceeded its statutory authority in promulgating the uncharged conduct provisions of section lB1.3(a)(2) to encompass separate uncharged property crimes such as those that Galloway was claimed to have committed. 943 F.2d at 899. Our panel stated that when asked, the government could not provide statutory authority in the enabling act or elsewhere to support either section lB1.3(a)(2) or the grouping provisions of U.S.S.G. § 3D1.2(d). Id. at 901. We granted rehearing en banc and now reverse.

In 1984, Congress established the United States Sentencing Commission. Sentencing Reform Act of 1984, Pub.L. No. 98-473, § 217(a), 98 Stat. 1837, 2017-27 (codified as amended at 28 U.S.C.A. §§ 991-998 (West Supp.1992)). Congress charged the Commission with, among other things, promulgating guidelines and policy statements for use in determining and implementing criminal sentences. 28 U.S.C. § 994(a). Thereafter, the Commission promulgated a comprehensive set of guidelines and policy statements, including the guideline at issue here, entitled “Relevant Conduct,” U.S.S.G. § 1B1.3. The relevant conduct guideline reads:

(a) Chapters Two (Offense Conduct) and Three (Adjustments). Unless otherwise specified, (i) the base offense level where the guideline specifies more than one base offense level, (ii) specific offense characteristics and (iii) cross references in Chapter Two, and (iv) adjustments in Chapter Three, shall be determined on the basis of the following:

(1) all acts and omissions committed or aided and abetted by the defendant, or for which the defendant would be otherwise accountable, that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense, or that otherwise were in furtherance of that offense;

(2) solely with respect to offenses of a character for which § 3D1.2(d) would require grouping of multiple counts, all such acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction;

(3) all harm that resulted from the acts or omissions specified in subsections (a)(1) and (a)(2) above, and all harm that was the object of such acts or omissions; and

(4) any other information specified in the applicable guideline.

(b) Chapters Four (Criminal History and Criminal Livelihood) and Five (Determining the Sentence). Factors in Chapters Four and Five that establish the guideline range shall be determined on the basis of the conduct and information specified in the respective guidelines.

The Chairman of the Sentencing Commission, United States Circuit Judge William W. Wilkins, Jr., and General Counsel John R. Steer have called the relevant conduct guideline “the cornerstone of the federal sentencing guideline system.” William W. Wilkins & John R. Steer, Relevant Conduct: The Cornerstone of the Federal Sentencing Guidelines, 41 S.C.L.Rev. 495, 496 (1990) [hereinafter Wilkins & Steer]. In promulgating the relevant conduct guideline, the Commission adopted a so-called “real offense” philosophy, since section IB 1.3 calls for sentencing based upon the actual conduct engaged in, rather than only upon the offense for which the defendant was convicted. See U.S.S.G. § 1B1.3, comment, (backg’d.) (uncharged conduct may enter into determination of applicable guideline sentencing range). To this end, subsection (a)(2) of the relevant conduct guideline requires courts, in determining an offender’s base offense level, to include “all such acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction.” U.S.S.G. § lB1.3(a)(2).

Section lB1.3(a)(2) applies to all offenses that ordinarily would be grouped together pursuant to U.S.S.G. § 3D1.2(d) for purposes of calculating the applicable sentencing range. Section 1B1.3 comment, (n. 2), “Application of [section lB1.3(a)(2)] does not require the defendant, in fact, to have been convicted of multiple counts,” id., and “[cjonduct that is not formally charged or is not an element of the offense of conviction may enter into the determination of the applicable guideline sentencing range.” Id. at backg’d, 111. Thus, relevant conduct must be considered under section 3D1.2(d) whenever:

the offense level is determined largely on the basis of the total amount of harm or loss, the quantity of a substance involved, or some other measure of aggregate harm, or if the offense behavior is ongoing or continuous in nature and the offense guideline is written to cover such behavior.

U.S.S.G. § 3D1.2(d). Galloway’s offense, theft from interstate shipment, falls within the relevant conduct guideline, including its interplay with section 3D1.2(d) (incorporating by reference U.S.S.G. § 2B1.1, the guideline applicable to thefts). The panel opinion is based specifically on the determination that U.S.S.G. § lB1.3(a)(2) is without statutory support and, therefore, may not be applied in determining Galloway’s sentence.

I.

We turn first to whether statutory authority exists for the adoption of a relevant conduct guideline. We review this question of law de novo. We begin our discussion by recognizing that the Sentencing Guidelines now provide the methodology for determining sentences within the statutory máximums.

Historically, courts have been allowed to consider uncharged criminal conduct in determining the sentence a convicted defendant should receive within the maximum penalty permitted by law. See Williams v. New York, 337 U.S. 241, 246, 69 S.Ct. 1079, 1082, 93 L.Ed. 1337 (1949). See also U.S.S.G. § 5Gl.l(a) (a guideline sentence may not exceed the statutory maximum). While the issue of statutory authorization has been raised on only a limited number of occasions, and we will discuss these cases presently, there are numerous decisions from most of the circuits, including ours, allowing sentencing judges to consider, under the Guidelines, uncharged as well as charged conduct.⁴ The authority Congress has given the Sentencing Commission to promulgate guidelines is extremely broad. The Commission is to enact guidelines that determine “the appropriate length of a term ... of imprisonment_” 28 U.S.C. § 994(a)(1)(B). The Commission is directed to “establish a sentencing range that is consistent with all pertinent provisions of title 18, United States Code.” 28 U.S.C. § 994(b)(1). Additionally, 18 U.S.C. § 3661 (1988) states that “[n]o limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.” See also 18 U.S.C. § 3553(a)(2) (1988) (“The court, in determining the particular sentence to be imposed, shall consider ... the need for the sentence imposed ... to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense_”).

Section 994(c)(2) of title 28 allows the Commission to promulgate guidelines that take into account “the circumstances under which the offense was committed which mitigate or aggravate the seriousness of the offense.” More generally, the preceding language in section 994(c) orders the Sentencing Commission to “consider whether [certain factors later enumerated within the statute], among others, have any relevance” in establishing guidelines and policy statements to determine sentences. 28 U.S.C. § 994(c) (emphasis added). The open-ended language “among others” invites the Commission to consider sentencing factors that Congress failed to specifically list. See S.Rep. No. 98-225, 98th Cong., 2d Sess. at 169 (1983), reprinted, in 1984 U.S.C.C.A.N. 3182, 3352 (“The Sentencing Commission is also required under subsection (c) [of section 994] to determine whether other factors not specifically listed are relevant to the sentencing decision.”).

We are satisfied that within the broad grants of authority to the Commission, this specific statutory language of section 994(c)(2) gives the Commission full authority to adopt a relevant conduct guideline, although it certainly cannot be said that the Commission was required to do so. Chevron U.S.Ar, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), directs us to consider two questions as we review the Commission’s construction of the statutory scheme which it administers:

First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.

Id. at 842-43, 104 S.Ct. at 2781-82 (footnotes omitted).

We believe that the reference to “circumstances ... which ... aggravate the seriousness of the offense,” 28 U.S.C. 994(c)(2), is direct language showing clear intent, under Chevron, to support enactment of U.S.S.G. § lB1.3(a)(2). Even if it is not so clear, we have no doubt that, taken with the more general language in section 994(c) and 18 U.S.C. § 3553(a)(2) and § 3661, there is sufficient and permissible statutory underpinning to support section lB1.3(a)(2) and its required consideration of all “acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction.” U.S.S.G. § lB1.3(a)(2).⁵ As specifically applied in this case, there is a basis for considering that interstate theft is aggravated by the fact that it is but one of a series of interstate thefts, the purpose of all of which was to steal truckloads of merchandise and sell them. In promulgating a guideline to authorize consideration of such relevant conduct, the Commission was acting under the authority given it by section 994(c)(2).

We also recognize that the Commission has submitted to Congress three different amendments involving the relevant conduct guideline, see 53 Fed.Reg. 15,529,15,530-31 (1988) (incorporating by reference the temporary amendments of Jan. 15, 1988, as printed in 53 Fed.Reg. 1285, 1287-1280 (1988)); 54 Fed.Reg. 21,347, 21,350 (1989); 55 Fed.Reg. 19,187, 19,190-91, 19,194 (1990), all of which have been approved. Hence, Congress has had three opportunities to reject section 1B1.3, but has not done so.

Three other circuits have concluded that statutory authority exists for enacting a relevant conduct guideline. The Fifth Circuit in United States v. Thomas, 932 F.2d 1085 (5th Cir.1991), cert. denied, — U.S. -, -, -, 112 S.Ct. 264, 428, 887, 116 L.Ed.2d 217, 447, 791 (1991 & 1992), stated that “section 994(c)(2) of Title 28 provides that the Commission must take into account ‘the circumstances under which the offense was committed which mitigate[] or aggravate^ the seriousness of the offense.’ ” Id. at 1089 (emphasis added). The court compared the statute with section lB1.3(a)(l) and found similarity between the two provisions, noting that any differences between them were “superficial.” Id. The discussion concerning the Commission’s statutory authority to promulgate section 1B1.3 continued:

Congress made open-ended its list of factors for the Commission to consider. Section 994(c) thus provides that the Commission “shall consider whether the following matters, among others, have any relevance.” (Emphasis added.) Even if the plain language of the Sentencing Reform Act did not track the language of the guidelines, any reasonable deviation is justified by the nonexclusive nature of Congress’s grant of authority to the Commission.

Id. Similarly, the Seventh Circuit in United States v. Ebbole, 917 F.2d 1495, 1501 (7th Cir.1990), rejected the argument that the Commission exceeded its statutory authority in enacting section 1B1.3. See also United States v. Rodriguez-Luna, 937 F.2d 1208, 1211 n. 3 (7th Cir.1991) (same). Most recently, the Sixth Circuit has stated that 28 U.S.C. § 994(c)(2) provides authority for promulgating a relevant conduct guideline. United States v. Davern, 970 F.2d 1490, 1495 n. 6 (6th Cir.1992).

We are unconvinced by the arguments that there is no statutory authority to support consideration of relevant conduct in section 1B1.3. Chief Judge Merritt of the Sixth Circuit has argued that section 1B1.3 contravenes 18 U.S.C. § 994(7), which authorizes incremental penalties and requires conviction of the offense for which the sentence is imposed. Davern, at 1506-09 (Merritt, C.J., dissenting); United States v. Miller, 910 F.2d 1321, 1329-30 (6th Cir. 1990) (Merritt, C.J., dissenting), cert. denied, — U.S. -, 111 S.Ct. 980, 112 L.Ed.2d 1065 (1991). Section 994(i), by its plain language, discusses incremental penalties for multiple convictions. We are persuaded by Judge Flaum’s reasoning in Ebbole, 917 F.2d at 1501, that section 994(i) contains no language indicating that it is to be read restrictively or exclusively, and that it does not preclude the consideration of uncharged conduct in section lB1.3(a)(2).

We also reject arguments based on the goal of avoiding sentencing disparities as a basis for finding the relevant conduct guideline to be contrary to statute. The argument is too diffuse to compel a conclusion that section 1B1.3 lacks statutory support. Further, to use the disparity argument to set aside the guideline is to ignore the statutory language in 18 U.S.C. § 3661, which, as we have noted above, clearly allows a judge to consider “background, character, and conduct of a person” when determining a sentence.

We conclude that there was sufficient statutory authority for the Commission to promulgate section 1B1.3 of the Guidelines.

II.

We now turn to whether the Constitution bars consideration of uncharged conduct in sentencing. The panel did not reach the constitutional issues because its decision on the statutory issues made it unnecessary. However, we cannot avoid examining the district court’s ruling that imposing a sentence based on uncharged, separate acts pursuant to section 1B1.3 would violate Galloway’s rights to indictment, jury trial, confrontation of witnesses, and proof beyond a reasonable doubt.

The government asserts that the constitutional rights governing trials simply do not apply in the context of sentencing. Once the defendant is convicted, the district court is free to consider facts not charged in the indictment, not presented to a jury, not tested by cross examination, and not proved beyond a reasonable doubt. Galloway retorts that section 1B1.3 is unconstitutional as applied because it allows prosecutors to evade the constitutional protections guaranteed to criminal defendants. He asserts that it is unconstitutional to increase his sentence by up to five years for conduct of which he was never tried and convicted.

The constitutional arguments raised here are conclusively answered by the Supreme Court’s opinion in McMillan v. Pennsylvania, 477 U.S. 79,106 S.Ct. 2411, 91 L.Ed.2d 67 (1986). There, the Court addressed a Pennsylvania statute that required a judge to impose a minimum five-year sentence for the commission of certain felonies upon a finding that the defendant “ ‘visibly possessed a firearm’ ” when committing the offense. Id. at 81, 106 S.Ct. at 2413. Like the Sentencing Guidelines, the Pennsylvania statute limited the sentencing judge’s discretion; it assigned a predetermined, mandatory penalty based on a particular finding. Also like the Guidelines, the statute’s application was restricted to the sentencing phase; it explicitly stated that the firearm finding was not an “element of the crime” of conviction and thus was to be established by a preponderance of the evidence. Id. at 81 n. 1, 106 S.Ct. at 2414 n. 1 (citing 42 Pa.Cons.Stat. § 9712 (1982)).

The Court firmly rejected the argument that the Pennsylvania statute violated due process by defining the visible possession of a firearm as a sentencing factor rather than as an element of the crime. The Court observed that it rejected in Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977), the “claim that whenever a State links the ‘severity of punishment’ to ‘the presence or absence of an identified fact’ the State must prove that fact beyond a reasonable doubt.” McMillan, 477 U.S. at 84, 106 S.Ct. at 2415 (citing Patterson, 432 U.S. at 214, 97 S.Ct. at 2329). The constitutional guarantee of due process requires only that the prosecution prove beyond a reasonable doubt those elements that the legislature has included in the definition of the charged offense. Id. at 85, 106 S.Ct. at 2415.

The McMillan Court acknowledged that there are constitutional limits on a legislature’s ability to define offenses. Id. at 85-86, 106 S.Ct. at 2416. “[I]n certain limited circumstances [the] reasonable-doubt requirement applies to facts not formally identified as elements of the offense charged.” Id. at 86, 106 S.Ct. at 2416. The Court concluded that the Pennsylvania statute did not transgress constitutional limits, however, because it did not discard the presumption of innocence, and did not alter the maximum sentence for the crime of conviction or create a separate offense carrying a separate penalty. Id. at 87-88, 106 S.Ct. at 2417. The Pennsylvania statute “operates solely to limit the sentencing court’s discretion in selecting a penalty within the range already available to it without the special finding of visible possession of a firearm.” Id. at 88, 106 S.Ct. at 2417 (emphasis added).

The Court acknowledged the “specter” of legislatures restructuring existing crimes to evade the reasonable-doubt requirement. Id. at 89, 106 S.Ct. at 2418. It concluded that such evasion had not occurred in Pennsylvania because that state’s legislature had not changed the definition of any existing offense; rather, it singled out one factor — the instrumentality used in the commission of the felony — that traditionally has been considered by the sentencing court and “dictated the precise weight to be given to that factor if the instrumentality is a firearm.” Id. at 89-90, 106 S.Ct. at 2418.

The Sentencing Guidelines do not differ from the Pennsylvania statute in any manner material to a constitutional inquiry. United States v. Restrepo, 946 F.2d 654, 657 (9th Cir.1991) (en banc), cert. denied, — U.S. -, 112 S.Ct. 1564, 118 L.Ed.2d 211 (1992). They both are directed to sentencing within statutory máximums, and apply only after guilt is determined. Thus, McMillan must guide our analysis.

Historically, a sentencing judge has exercised “a wide discretion in the sources and types of evidence used to assist him in determining the kind and extent of punishment to be imposed within limits fixed by law.” Williams v. New York, 337 U.S. at 246, 69 S.Ct. at 1082. The judge also traditionally has “heard evidence and found facts without any prescribed burden of proof at all.” McMillan, i'll U.S. at 91, 106 S.Ct. at 2419 (citing Williams, 337 U.S. 241, 69 S.Ct. 1079). This practice does not violate the defendant’s constitutional rights because “sentencing takes place only after a defendant has been adjudged guilty beyond a reasonable doubt. Once the reasonable-doubt standard has been applied to obtain a valid conviction, ‘the criminal defendant has been constitutionally deprived of his liberty to the extent that the State may confine him.' ” McMillan, 477 U.S. at 92 n. 8, 106 S.Ct. at 2419 n. 8 (quoting Meachum v. Fano, 427 U.S. 215, 224, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451 (1976)).

The Sentencing Guidelines, like the Pennsylvania statute, have done nothing more than take traditional sentencing factors and accord them á “predetermined effect.” Restrepo, 946 F.2d at 657. Due process is not violated simply because a legislature has restricted the court’s discretion and provided it with “additional guidance.” See McMillan, 477 U.S. at 92, 106 S.Ct. at 2419. Like the Pennsylvania statute, the Sentencing Guidelines have not negated the presumption of innocence; the prosecution still must prove guilt beyond a reasonable doubt with regard to all elements of the crime of conviction. Cf. Mullaney v. Wilbur, 421 U.S. 684, 686, 704, 95 S.Ct. 1881, 1883, 1892, 44 L.Ed.2d 508 (1975) (overturning on due process grounds a state- murder statute that allowed malice to be presumed upon proof that the homicide was intentional and unlawful, unless the defendant proved by a preponderance of the evidence that he acted in the heat of passion on sudden provocation). See also Patterson, 432 U.S. at 214-16, 97 S.Ct. at 2329 (discussing Mullaney presumption and rejecting due process challenge to New York statute not containing such a presumption).

Also like the Pennsylvania statute, the Sentencing Guidelines do not alter the maximum statutory penalties for the crimes of conviction. The Guidelines merely prescribe sentencing ranges that fall within the statutory limits. Before the Guidelines, the sentencing court had the discretion to sentence a defendant up to the statutory maximum. A due process violation does not arise simply because the Guidelines restrict the exercise of judicial discretion. United States v. Nunley, 873 F.2d 182, 186 (8th Cir.1989); United States v. Brittman, 872 F.2d 827, 828 (8th Cir.), cert. denied, 493 U.S. 865, 110 S.Ct. 184, 107 L.Ed.2d 140 (1989).

The fundamental issue before us is the determination of a sentence for the crime charged, which carries the maximum sentence of ten years. That the guidelines allow relevant conduct, including uncharged conduct, as a sentencing factor or consideration, McMillan, 477 U.S. at 86, 91, 106 S.Ct. at 2416, 2419, to determine a sentence within the statutory maximum of ten years does not alter the nature of the issue. A theft that is but one of a chain of eight similar thefts is far different from a single theft in interstate commerce. This is “a circumstance of [the] offense,” McMillan, 477 U.S. at 92, 106 S.Ct. at 2419, that bears directly upon its seriousness, and even though uncharged, may properly be considered in determining the length of that sentence within the statutory range. The guidelines do no more than adopt the practice of considering related activities in imposing sentences, a fundamental principle of sentencing in this country for many years. This does not violate the plain language of the constitutional provisions, and is certainly justified by Williams and McMillan.

The dissent arguing constitutional infirmity of the guidelines makes much of the express language of the Fifth and Sixth Amendments. The argument stumbles over its presumption that Galloway is being punished for the uncharged conduct, since in reality Galloway is being punished for the one charged theft. The uncharged conduct is used only as a measure of the severity of the crime for which he has been charged and for which he has pleaded guilty.

Also like the Pennsylvania statute, the Sentencing Guidelines do not create separate offenses with separate penalties. The Guidelines operate only at the sentencing stage, after the accused has been afforded the full panoply of constitutional protections and found guilty beyond a reasonable doubt. The Guidelines are a direct reflection of the bifurcated nature of our criminal process, which separates trial and conviction from sentencing. Although some may consider it unfair to sentence on the basis of offenses for which a defendant has not been charged or convicted,⁶ see Ebbole, 917 F.2d at 1496, the Supreme Court has “long held that this practice does not violate due process.” Id. (citing Williams, 337 U.S. 241, 69 S.Ct. 1079). In Williams, the Court upheld a sentence based in part on evidence not introduced at trial that the defendant had committed thirty burglaries for which he had never been convicted. 337 U.S. at 244, 252, 69 S.Ct. at 1081, 1085. If legislatures may standardize sentencing, as McMillan held, and if courts may impose sentences based partly on conduct for which the defendant has not been convicted, as Williams held, then it logically follows that Congress may authorize establishment of predetermined penalties for certain sentencing factors if the government establishes those factors with sufficiently reliable evidence. See Ebbole, 917 F.2d at 1497.

We conclude that section 1B1.3, as applied here, does not transgress the limits of due process. Because a defendant’s uncharged crimes are treated as sentencing factors, the rights to indictment, jury trial, and proof beyond a reasonable doubt simply do not come into play.⁷ McMillan explicitly rejected the argument that the sentencing phase requires a more stringent standard of proof than a preponderance of the evidence. “Sentencing courts have traditionally heard evidence and found facts without any prescribed burden of proof at all.” 477 U.S. at 91, 106 S.Ct. at 2419. United States v. Malbrough, 922 F.2d 458, 464 (8th Cir.1990) (preponderance of the evidence standard to be applied at sentencing), cert. denied, — U.S. -, 111 S.Ct. 2907, 115 L.Ed.2d 1071 (1991). See also United States v. Lam Kwong-Wah, 966 F.2d 682, 685-88 (D.C.Cir.1992). McMillan also rejected, as “merit[ing] little discussion,” the claim that the Pennsylvania statute denied a defendant’s right to a trial by jury. Id. at 93,106 S.Ct. at 2420. “[Tjhere is no Sixth Amendment right to jury sentencing, even where the sentence turns on specific findings of fact.” Id.

Our conclusion that it is constitutionally permissible to factor uncharged conduct into the sentencing calculus is further bolstered by the opinions of the Third, Seventh, and Ninth Circuits in United States v. Mobley, 956 F.2d 450 (3d Cir.1992), Ebbole and Restrepo. All three of these decisions rest on an interpretation of McMillan, and all conclude that a sharp distinction exists between conviction and sentencing. “At the sentencing stage ... a convicted criminal is entitled to less process than a presumptively innocent accused.... [Ojnce convicted, a defendant has a liberty interest in the correct application of the Guidelines within statutory limits, nothing more and nothing less.” Mobley, 956 F.2d at 455 (citing McMillan, 477 U.S. 79, 106 S.Ct. 2411, and Restrepo, 946 F.2d at 659).

The legislature’s definition of the offense is usually dispositive in determining which facts must be proved beyond a reasonable doubt. McMillan, 477 U.S. at 85, 106 S.Ct. at 2415. Due process does impose certain limits, however. In McMillan, the Court suggested that a sentencing scheme could violate due process if the sentencing factors exposed the defendant to “greater or additional punishment” beyond that provided under the statute of conviction. Id. at 88, 106 S.Ct. at 2417. That problem did not exist with the Pennsylvania statute because a finding that the defendant visibly possessed a firearm during the commission of the specified felony would result only in raising the defendant’s sentence to a minimum of five years. Id. The specified felonies all carried maximum sentences of 10 and 20 years. Id. at 87, 106 S.Ct. at 2417. Thus, the Pennsylvania statute “gives no impression of having been tailored to permit the visible possession finding to be a tail which wags the dog of the substantive offense.” Id. at 88, 106 S.Ct. at 2417.

It is clear that the Constitution limits a legislature’s ability to designate some factors as elements of the crime and others as sentence enhancers. See, e.g., Mobley, 956 F.2d at 458 (indicating that Congress and the Commission do not have free rein; McMillan “clearly envisioned limits”). Citing the Court’s implied disapproval of a sentencing factor that is “tailored” to be “a tail which wags the dog of the substantive offense,” McMillan, 477 U.S. at 88, 106 S.Ct. at 2417, the Third, Seventh and Ninth Circuits agree that due process may be violated if the punishment meted out following application of the sentencing factors overwhelms or is extremely disproportionate to the punishment that would otherwise be imposed. See United States v. Trujillo, 959 F.2d 1377, 1382 (7th Cir.1992) (“extreme” disparity between sentence received and sentence for charged crime may require increased due process protections at sentencing), reh’g granted, Apr. 20, 1992; Mobley, 956 F.2d at 456 (McMillan leaves open possibility that sentencing factor may improperly cause “disproportionate impact”); Restrepo, 946 F.2d at 659 (if sentencing factor has “extremely disproportionate effect,” due process may require proof by more than a preponderance of the evidence).

Any due process boundaries have not been breached in this case. Consideration of the seven uncharged thefts increases Galloway’s sentencing range from 21-27 months to 63-78 months. Although his term of punishment would be almost tripled following the proper application of section 1B1.3, we do not believe that the impact of this guideline section is so extreme or overwhelming as to raise due process concerns. In United States v. Payne, 940 F.2d 286 (8th Cir.1991), cert. denied, — U.S.-,-, 112 S.Ct. 616, 1589, 116 L.Ed.2d 638, 118 L.Ed.2d 307 (1992), we rejected a constitutional challenge when the application of sentencing factors doubled the sentencing ranges of two defendants and nearly tripled the range of another. 940 F.2d at 292-93; id. at 294 (Heaney, J., dissenting). Cf United States v. Townley, 929 F.2d 365, 369-70 (8th Cir.1991) (stating in dictum that sevenfold increase in sentence might require proof at sentencing by more than a preponderance of the evidence).

Decisions of other circuits in similar cases are in agreement. See Trujillo, 959 F.2d at 1382 (near doubling of sentencing range, with actual increase of 53 months, is permissible); Restrepo, 946 F.2d at 661 (increase in sentence of 12-20 months based on application of sentencing factors does not present situation of “ ‘tail which wags the dog of the substantive offense’ ”); Eb-bole, 917 F.2d at 1496, 1501 (approving increase in sentencing range from 27-33 months to 92-115 months).

In United States v. Kikumura, 918 F.2d 1084 (3d Cir.1990), the district court departed from the Sentencing Guidelines based on factors not taken into account by the Guidelines, resulting in a twelve-fold increase in the sentence, from 27-33 months to 360 months. Id. at 1089. The Third Circuit held that such a radical increase required application of the clear and convincing standard at sentencing. Id. at 1101-02. It reduced the defendant’s sentence, concluding that a sentencing range of 210 to 262 months (representing an approximate eight-fold increase) was warranted. Id. at 1110-19. We are not confronted with an increase of Kikumura’s magnitude (either as rejected or as approved by the Third Circuit). We see no reason to conclude that the application of section 1B1.3 has created a situation in which the “tail [is] wag[ging] the dog of the substantive offense.”

The panel decision, which we now reverse, specifically limits consideration of unconvicted conduct to determining an appropriate sentence within the guideline range. The shortcoming of this approach is that it effectively reads out of the Guidelines those sections dealing with relevant conduct and gives effect only to those provisions dealing with the offense of conviction.⁸ There is simply no support for this truncated reading of the Guidelines. We must consider the Guidelines as a whole.

III.

Having concluded that there is statutory authorization for the relevant conduct guideline and that it does not violate the Constitution, some further words are in order.

Other circuits have seen fit to comment that the application of the relevant conduct guideline, when it results in significant increases in sentences, such as here, might discourage defendants from pleading guilty. See Ebbole, 917 F.2d at 1501; Miller, 910 F.2d at 1332-33 (Merritt, J., dissenting); United States v. Frederick, 897 F.2d 490, 491 n. 1 (10th Cir.), cert. denied, — U.S. -, 111 S.Ct. 171, 112 L.Ed.2d 135 (1990). We recognize the danger that United States Attorneys may seek indictments for less serious offenses that are easier to prove and then seek substantially increased sentences based on the uncharged conduct. Control over this sentencing practice rests in the hands of the district judge. See Wilkins & Steer, supra, at 500. Although the Guidelines certainly channel the court’s discretion in sentencing, they also underscore the significant responsibility that remains with the district judge. When, as in a case like this, a simple charge of one theft triggers a claim by the government that the defendant committed seven other thefts that must be considered in sentencing, we can expect that defendant’s counsel will interpose vigorous objections, as indeed occurred here. The district court must resolve, as questions of fact, those issues raised in the relevant conduct guideline, namely: other (1) “acts and omissions committed or aided and abetted by the defendant, or for which the defendant would be otherwise accountable, that occurred during the commission, ... preparation, for, ... or in the course of attempting to avoid detection or responsibility, ... or that otherwise were in the furtherance of an offense,” or (2) “acts [and] omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction.” U.S.S.G. § lB1.3(a)(l) and (2).

It is not, as Judge Merritt suggested in his Miller dissent, that the United States Attorney may seek indictments for less serious, easy-to-prove offenses and “then expand them in the probation office.” 910 F.2d at 1332. Any expansion can be made only by the district court. Section 6A1.3 of the Sentencing Guidelines and its commentary require that the court “shall resolve disputed sentencing factors in accordance with ‘Rule 32(a)(1)’ of the Federal Rules of Criminal Procedure.” The commentary makes clear that “[t]he sentencing court must determine the appropriate procedure in light of the nature of the dispute, its relevance to the sentencing determination, and applicable case law.” U.S.S.G. § 6A1.3 comment.

When uncharged conduct is alleged as relevant conduct to substantially increase the sentencing range, district judges are authorized to require the United States Attorney to undertake the burden of presenting evidence to prove that conduct. In the final analysis, the determination of what is relevant conduct is a factual question to be decided by the district judge. The record in this case demonstrates that the Assistant United States Attorney was prepared to assume the appropriate burden and to present evidence of the uncharged conduct before the district court in the sentencing proceedings. The district court foreclosed such efforts by its ruling on the constitutional issues. We are satisfied that on remand, the sentencing inquiry will be conducted according to such standards.⁹

It is likely that if such procedures are required by district judges, any tendencies of United States Attorneys to charge “light” and attempt to sentence “heavy” will be curbed. Indeed, requiring proof to support such substantial increases at the sentencing phase may well cause government attorneys to conclude that the better course is to charge the heavier offenses in the trial of their case.

We also observe that defense counsel in negotiating pleas can and should ascertain the approach the government plans to take in sentencing. When the government seeks substantial increases based on uncharged offenses, the defense attorneys can act accordingly.

Before such sentencing proceedings, the district court can notify the parties that it will require proof of uncharged conduct. At the hearing, the district court may determine the sufficiency of such evidence and whether it meets the preponderance of evidence standard. Finally, the court must make the ultimate decision as to whether the conduct is relevant in terms of sentencing enhancement, a decision which involves a specific inquiry into the factors enumerated in section lB1.3(a).

We remand for resentencing in accordance with this opinion.

1 . The uncharged thefts were as follows: (1) December 9, 1988, a truckload of 14,840 pairs of shoes valued at $237,670; (2) April 28, 1989, 827 tires valued at $68,000; (3) June 30, 1989, a load of 1,339 tires valued at $75,000; (4) August 11, 1989, a load of 6,840 slippers and shoes valued at $126,000; (5) August 24, 1989, a load of 167 televisions valued at $100,000; (6) January 13, 1990, a load of 880 cases of baseball cards valued at $198,000; (7) January 19, 1990, a load of 1,104 clocks valued at $168,280. All of these loads of merchandise were sold or distributed, several to the same individual and with several coming into the hands of the same auction company. Much of the merchandise was recovered. PSR ¶¶ 13-19.

2 . Young pled guilty under an identical plea agreement to Galloway’s, and his PSR listed the same uncharged interstate property offenses as those listed in Galloway’s PSR. However, Young's PSR concluded that the theft of the trailer and tires "was the only transaction of which Mr. Young ... had knowledge.” PSR ¶ 21. As a consequence, the PSR calculated Young’s sentencing range based only on the offense charged in the indictment. Additionally, Young’s PSR recommended a two-level reduction for acceptance of responsibility. Therefore, Young was assigned a sentencing range of only two to eight months, based on an adjusted offense level of 8 and a criminal history category of I.

3 . The Assistant United States Attorney first announced that he was ready to put the FBI agents who had investigated the case on the stand to prove such conduct. In response to the court’s statement that it would consider only evidence that would be admissible at trial had additional charges been filed, the Assistant United States Attorney stated that he would desire to present such testimony.

4 . Cases from outside this circuit include, for example, United States v. Gerante, 891 F.2d 364, 368-69 (1st Cir.1989); United States v. Bedoya, 878 F.2d 73, 75-76 (2d Cir.1989); United States v. Williams, 880 F.2d 804, 805-06 (4th Cir.1989); United States v. Gordon, 876 F.2d 1121, 1125-26 (5th Cir.1989); United States v. Ykema, 887 F.2d 697, 700 (6th Cir.1989), cert. denied, 493 U.S. 1062, 110 S.Ct. 878, 107 L.Ed.2d 961 (1990); United States v. Vopravil, 891 F.2d 155, 157 (7th Cir.1989); United States v. Restrepo, 903 F.2d 648, 652-53 (9th Cir.1990); United States v. Rut-ter, 897 F.2d 1558, 1561-63 (10th Cir.), cert. denied, — U.S.-, 111 S.Ct. 88, 112 L.Ed.2d (1990); United States v. Alston, 895 F.2d 1362, 1371-72 (11th Cir.1990). The Ninth Circuit has, however, held it to be unfair for a district court to enhance a sentence based on charges dismissed pursuant to a plea agreement. United States v. Fine, 946 F.2d 650, 652 (9th Cir.1991), reh’g en banc granted, 963 F.2d 1258 (9th Cir. 1992).

Cases from this circuit include United States v. Lawrence, 915 F.2d 402, 406-08 (8th Cir. 1990); United States v. Hoelscher, 914 F.2d 1527, 1544 (8th Cir.1990), cert. denied, — U.S.-, 111 S.Ct. 971, 112 L.Ed.2d 1057 (1991); United States v. Streeter, 907 F.2d 781, 791 (8th Cir. 1990); United States v. Johnson, 906 F.2d 1285, 1290-91 (8th Cir.1990); United States v. Sleet, 893 F.2d 947, 948-49 (8th Cir.1990); United States v. Cohoon, 886 F.2d 1036, 1037-38 (8th Cir.1989) (per curiam); United States v. Allen, 886 F.2d 143, 144-46 (8th Cir.1989); United States v. Ehret, 885 F.2d 441, 445 (8th Cir.1989), cert, denied, 493 U.S. 1062, 110 S.Ct. 879, 107 L.Ed.2d 962 (1990); United States v. Williams, 879 F.2d 454, 457 (8th Cir.1989); United States v. Natal-Rivera, 879 F.2d 391, 393 (8th Cir. 1989); United States v. Mann, 877 F.2d 688, 690 (8th Cir.1989).

5 . The dissent arguing lack of statutory support is critical of the application of Chevron to our analysis. This circuit en banc, as well other circuits, has applied Chevron in considering guideline cases. United States v. Kelley, 956 F.2d 748 (8th Cir. 1992) (en banc); United States v. Skabazz, 933 F.2d 1029 (D.C.Cir.1991); United States v. Doe, 934 F.2d 353, (D.C.Cir.1991); United States v. Harper, 932 F.2d 1073 (5th Cir., 1991); United States v. Lewis, 896 F.2d 246 (7th Cir.1990); United States v. Denardi, 892 F.2d 269 (3d Cir.1989).

Similarly, the dissent’s reliance on United States v. Thompson/Center Arms Co., — U.S. -, 112 S.Ct. 2102, 119 L.Ed.2d 308 (U.S.1992), is misplaced, since the Supreme Court there applied the rule of lenity to a statute it concluded was ambiguous, ambiguity being a necessary predicate for such analysis. Our conclusion that there is statutory authority for the Guideline precludes any argument that the statute is ambiguous.

6 . Numerous cases in this circuit and others hold that a sentence may consider uncharged conduct, charges that were dismissed, see, e.g., Thomas, 932 F.2d at 1088 n. 1; Miller, 910 F.2d at 1327; United States v. Streeter, 907 F.2d 781, 791 (8th Cir.1990), or charges on which the defendant was actually acquitted, see United States v. Olderbak, 961 F.2d 756, 764-65 (8th Cir.1992); United States v. Averi, 922 F.2d 765, 766 (11th Cir.1991) (per curiam); United States v. Rodriguez-Gonzalez, 899 F.2d 177, 179-82 (2d Cir.), cert. denied, — U.S.-, 111 S.Ct. 127, 112 L.Ed.2d 95 (1990); United States v. Mocciola, 891 F.2d 13, 16-17 (1st Cir.1989); United States v. Isom, 886 F.2d 736, 738-39 (4th Cir. 1989). Contra United States v. Brady, 928 F.2d 844, 851-52 (9th Cir.1991).

A sentence that considers charges on which there was acquittal is permissible because of the differing levels of proof needed for conviction and sentencing. Mocciola, 891 F.2d at 16-17. Despite a jury’s decision that the defendant is not guilty beyond a reasonable doubt, the sentencing court may decide that the evidence of guilt is strong enough to meet the preponderance of the evidence standard applied at sentencing. Id. See abo Rodriguez-Gonzalez, 899 F.2d at 182.

7 . The district court also ruled that Galloway had the right to confrontation during sentencing. We need not discuss this issue, however, as the Assistant United States Attorney stated that he was prepared to present the testimony of the FBI agents and other witnesses to prove the uncharged thefts were part of a common scheme. This issue has been considered by the court en banc in United States v. Wise, 976 F.2d 393 decided this day, and our decision in Wise will guide the district court in further proceedings.

8 . The dissent arguing constitutional infirmity asserts Galloway possesses a liberty interest "in the precise range of sentence obtained by guideline methodology,” and when the sentence may be increased several fold, due process considerations apply and may require a heightened burden of proof. The argument is related to that made by dissents in Mobley, 956 F.2d at 462 (Mansman, J., dissenting), and Restrepo, 946 F.2d at 665 (Norris, J., dissenting). See also Miller, 910 F.2d at 1329-33 (Merritt, C.J., dissenting). The shortcoming of these arguments is that they are based on the presumption that the guideline range for the offense of conviction alone gives rise to the liberty interest and not a guideline determination considering all of the factors, including relevant conduct. This argument was answered most ably by Judge Wiggins in Restrepo:

However, we emphasize that the convicted defendant’s liberty interest is not an interest in the maximum guideline sentence set by the offense of conviction alone, as the dissent maintains. The Supreme Court has recognized that due process protects a defendant’s interest in fair sentencing, but has emphasized in the same cases that the interest is not defined as a liberty interest in a sentence below the statutory maximum_ The statute for the offense of conviction sets the constitutional parameters of a possible sentence. Once those limits are established by a valid conviction on proof beyond a reasonable doubt, the defendant’s liberty interest has been greatly reduced. However, factfinding is still necessary under some legislative schemes to set the sentence accurately within statutory limits, such as the Pennsylvania statute in McMillan and the Guidelines. The teaching of McMillan is that, as a general matter, due process is satisfied by a preponderance of the evidence standard of proof for that factfinding. 477 U.S. at 92, 106 S.Ct. at 2419.

Restrepo, 946 F.2d at 659 (emphasis added).

9 . The commentary to section 6A1.3 states:

The court’s resolution of disputed sentencing factors will usually have a measurable effect on the applicable punishment. More formality is therefore unavoidable if the sentencing process is to be accurate and fair.... An evidentiary hearing may sometimes be the only reliable way to resolve disputed issues. See United States v. Fatico, 603 F.2d 1053, 1057 n. 9 (2d Cir.1979). The sentencing court must determine the appropriate procedure in light of the nature of the dispute, its relevance to the sentencing determination, and applicable case law.

U.S.S.G. § 6A1.3 comment.