Top-side brief in Grier proof standard Third Circuit en banc appeal

Kind readers have sent me the recently filed Appellant's Brief in US v. Grier, the case in which the Third Circuit will be considering appropriate burdens of proof in post-Booker federal sentencing.  The brief can be accessed below, and here is its summary of the major constitutional arguments:

This Court should vacate Grier's sentence and remand for resentencing because the District Court erred in enhancing Grier's sentence based upon its finding, by a preponderance of the evidence, that he committed an aggravated assault, for several reasons.

First, the Due Process Clause requires the District Court to apply the reasonable doubt standard in finding enhancement facts when the sentencing enhancement constitutes a new and separate offense. Second, The Doctrine of Constitutional Avoidance requires use of the reasonable doubt standard to avoid construing the federal sentencing statutes as unconstitutional....

Download GrierBriefEnBanc.pdf

Related posts on Grier and burdens of proof:

• Third Circuit specifies issues for Grier en banc
• 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
• Ninth Circuit adds nuance to post-Booker burdens of proof
• Burdens of proof and a new due process of sentencing
• More about beyond a reasonable doubt at sentencing
• Revised draft of Pondering Modern Sentencing Process
• A post-Booker burden of proof primer