Third Circuit specifies issues for Grier en banc

As detailed in posts listed below, the Third Circuit is to consider post-Booker burden of proof issues en banc in US v. Grier.  Yesterday, the Circuit entered an order with an expedited briefing timeline and three specific issues for the parties to focus upon.  Here is the heart of the order:

Counsel shall address the following issues in their brief and be prepared to address the issues at argument:

1) Whether Due Process Clause creates a right to proof beyond a reasonable doubt as applied to certain facts relevant to enhancements under the advisory United States Sentencing Guidelines regime in light of United States v. Booker, 543 U.S. 220 (2005), and Apprendi v. New Jersey, 530 U.S. 466 (2000), and, if so, which facts;

2) Whether there is sufficient evidence of aggravated assault to support the sentence enhancement; and,

3) Whether this Court's holding in United States v. Kikumura, 918 F.2d 1084 (3d Cir. 1990), that sentencing facts which "significantly increase the recommended sentence . . . must be proved by clear and convincing evidence," should be overturned.

Related posts about Grier:

• Major Third Circuit ruling on post-Booker burden of proof
• More on Grier and the post-Booker burden of proof
• Third Circuit taking burdens en banc

Some related posts about burdens of proof at sentencing:

• Burdens of proof and a new due process of sentencing
• More about beyond a reasonable doubt at sentencing
• Further reflections on burdens of proof and acquitted conduct
• Requiring proof beyond a reasonable doubt in any legislative fix
• A post-Booker burden of proof primer
• In praise of Okai and its burden of proof insights
• Judge Kopf takes on Judge Bataillon on the burden of proof
• Ninth Circuit adds nuance to post-Booker burdens of proof
• Revised draft of Pondering Modern Sentencing Process