The Tenth Circuit has long held that sentencing facts in the "ordinary case" need only be proven by a preponderance of evidence. United States v. Olsen, 519 F.3d 1096, 1105 (10th Cir. 2008). But the Tenth Circuit has also "reserved the question of whether, in some extraordinary or dramatic case, due process might require a higher standard of proof." Id.
A recent Ninth Circuit decision provides new inspiration to press this argument. In United States v. Valle, the Ninth Circuit held that the government was required to prove the defendant's continuous presence in the United States by clear and convincing evidence before his illegal-reentry guidelines range could be significantly increased under USSG §§ 2L1.1 and 4A1.1.
There are possibly two circuit splits at work here:
First, whether the higher standard ever applies. The Tenth Circuit says "maybe," while the Ninth Circuit says "yes."
Second, when that higher standard applies. The Tenth Circuit says it might apply "in some extraordinary or dramatic case." The Ninth Circuit, in contrast, applies the higher standard to any fact that has "an extremely disproportionate impact on the sentence." This standard may not sound very different from the Tenth Circuit's, but the Tenth Circuit appeared to reject it in Olsen. The standard comes into play in the Ninth Circuit when circumstances favor it, taking into consideration (among other factors) "whether the increase in the number of offense levels is less than or equal to four," and "whether the length of the enhanced sentence more than doubles the length of the sentence authorized by the initial sentencing guideline range in a case where the defendant would otherwise have received a relatively short sentence."
Whether you have an "extraordinary or dramatic case," or just one where a guidelines enhancement has a significant impact, argue that the facts necessary to trigger that enhancement must be proved by clear and convincing evidence.* And let us know what happens.
*Or go all out, and argue that the constitutional protections of due process, notice, and jury factfinding beyond a reasonable doubt apply to facts that (dramatically/significantly) increase the minimum and maximum penalties prescribed by the advisory sentencing guidelines, notwithstanding United States v. Cassius, 777 F.3d 1093 (10th Cir. 2015). See Jones v. United States, 135 S.Ct. 8 (2014) (“any fact necessary to prevent a sentence from being substantively unreasonable—thereby exposing the defendant to the longer sentence—is an element that must be either admitted by the defendant or found by the jury. It may not be found by a judge”) (Scalia, J., dissenting from denial of certiorari, joined by Thomas, J., and Ginsburg, J.); Gall, 552 U.S. at 60 (Scalia, J., concurring) (“The door remains open for a defendant to demonstrate that his sentence, whether inside or outside the advisory Guidelines range, would not have been upheld but for the existence of a fact found by the sentencing judge and not by the jury.”); United States v. Sabillon-Umana, 772 F.3d 1328, 1331 (10th Cir. 2014) (Gorsuch, J.) (observing that it is “questionable” to assume “that a district judge may either decrease or increase a defendant’s sentence (within the statutorily authorized range) based on facts the judge finds without the aid of a jury or the defendant’s consent. It is far from certain whether the Constitution allows at least the second half of that equation.”); see also Kathryn M. Zainey, The Constitutional Infirmity of the Current Federal Sentencing System: How the Use of Uncharged and Acquitted Conduct to Enhance A Defendant’s Sentence Violates Due Process, 56 Loy. L. Rev. 375 (2010) (arguing that the “process of enhanced sentencing based on uncharged and acquitted conduct is patently unconstitutional, even if the ultimate sentence remains within the statutory range of the offense for which the defendant was originally convicted”).