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(3) The catell-all provisions require violate Due Process and jurytrial rightsTqhr adopted a categorical approach for federal sentence eal~ancementbecause of the "potential unfai111ess of a factual approacl~." Id Thecoust posed a h)pothetical constitutional question:dence aid to be informed of the evidence being considered against ill en^.illorrissej~ u. Brerrw; 92 S.CI. 2593 (1972) (parolees); Gngrroir u.Sca~pelii, 93 S.Ct. 1756 (1973)(prabation revocation I~eari~gs). See olso,illr~llmq u. IVilhro> 95 S.Ct. 1881 (1975)(intproper for the law lo sluftburden of proof and presume xi elen~ent).Title 18 U.S.C. § 3661, wl1ic11 provides, "No limitation shall be placedIf the se~~te~ici~~g court were to conclude, from ib own reviewof the record, that the defendant actually co~~~nlined a genericburgJaty [even if he was not convicted of one], could thedefendant challenge this co~~clusio~~ as abridging his right to ajuly trid?at 2160.on the inforn~ation concerning the. .. conduct of apel-son co~~victed," dealswit11 discretion to unpose a sentence within predetermined statuto~y lin~its.It does not elllpon7er courts to illcrase a statutoly IIILX~IIIIIN sentence, atleast sinceilpprw~~di, srqro.Eve11 before Apprendi, and even under the Guidelines, a defel~da~~t 11%procedurxl safegoards duriog the fact-finding shges of proceedings ag;~instAppre~~cli u. 1\~eu1Jersq1, 120 S.Ct. 2348 (2000) answered Toylor's hpotlieticalquestion in tl~c affi~uative. In Appret~di, the Supreme Court heldthat a New Je~scy hate crime la\\, that enliances a shh~to~y III~W~IIIUIII selltencebased on ixcial ~notive of the defendant may not be a "sentencing hctor"for the sentencing judge to decide. Apprei~di relied decisively on cotlhim.See U.S.S.G. 6A1.3 and its con~me~rta~y The gover~~me~~t lias the b1wden ofproof to enhance a sentence. 'I'llis implies evidence of some indiciaof reliability Id Evidence of uncertain origin and reliabilily may not be considered.A trait conlmon to cases expanding the catch-all provisioos to non-viastitutioddue process and jury trkal ri$ts. Motive must be alleged is the lent priors is that courts found the prior offenses categorically ii~\~olved theindictment, proved to Ll~e jury, and proved with coe~petent evidence beyonda rmonable doubt. The Supreme Court held decisively and unambiguously011 constitutional grounds that:required risk in ~JI evidentiaiy ~~acuum. illorrdy, GnItio~~-Rodrig~re~,Cn~~~ocho-~lla~roqt~i~~, Hal[ and Fortes, to llanle a fe\r: found that escape,joyiding, D\W, possessio~~ of a firearm, and can)ing a wapoe inl~erentlyinvolved the required degree and lype of risk without hearkig a n~itness orOther tllan the fact of a conviction, aiy fact that increases thependty of a crime beyond the prescribed Stahltoly III~IIIIIIImust be submitted to tl~ejuiy antl proved beyond a rmsonabledoubt, at 2361.rading an cxbibit.111 several fedecd proseci~tior~s in El Paso, Texw, the government aUegcdthat felony D\VI is XI agsavated felon): The defense argued that the govenmeut n~ust present some e~idence to prove that D\YI invol\w a "substantialrisk of p11)sicalforceagdnst othe~s" to fall witbin 18 U.S.C. § 16(b).Athongl~ Apredi involved a fact alleged ~II the CII~~GIII offense of conviction,the lmguage of its holding does not eschde facts involved inprioroffenses. "hiy fact," other than the nwe existence of a convictioa, must betreated as an ele~ue~~t of the offense, if it increases the shtuto~y nlxxinumsentence. Due process, burden of proof, juty trial, and the right to indictmentfor federal felonies, are individual protections that screen all fact allegationsbefore tllose dlegatio~is can be used to increase a statuto~y punisll-The sme argugumeots call be made with sespect to escape, possession of\r8eapotis, UUbIV, etc. The governmellt will likely Iwe no evidence.The Fifth Circuit lmd stated in other cases tl~at "substantial risk nlealis"strong probability." United Stotes 11. Golm~r-Rodrig~rez, 169 E3d 217.Another circuit had speculated about the required probability being 30% orlo%, but wisely didn't pin itself do\w wit11 a f~ction. Oirlterl Sfotes nRrltherford,, 54 E3d at 376 (7th Cil: 1996) (inte~preting the "career offendnwtrange.er" "crime of violence" catch-all)Apprordi afinls thai the constitution requires strict adherence to the Of come, the ove~vl~elniiog niajority of D\Vl offenses result in no accicategoricalapproach to appl)i~ig enhancen~ent laws, as lhj'lor suggestetl.l@lor andlIpprerrdi, read together, luean tliat the sentencing court may notrely on facb outside the jury's findings in the prior co~wiction to incrase astatutory masilllum sentence except to End the existerm of the convictionitself. The COIII~I~I~reference pou~ls are ekeients. Hecause T$j,lor requirestllat courts compare ele~l~e~~ts with elements, antl because App~wrl holdsthat due process requires jury scmtiay of all fact issues, courts cannot applythese catcll-all provisions unless they include as ele~~rerrts the punisl~ed substantialor serious potential risk of inju~y or physical force.Defendants with prior conrictions for escape, felo~~y D\V, possession ofa s:t\\.ed-off sllotgun, unauthorized use of a veliicle, etc., never 11ad tl~echance to present theissue of risk of injuly or use of force to a ju~y becauseit was no legislahre had made it an element. Thy were II~Wcharged inthe mrlier prosecution nit11 Iiaving con~niittetl 1 crime with the elementsdents and no use of force. Altl~ougl~ the gowrrn~~ent offered no evidence,tl~e defense retained a o:ltionally recognized expert ill the field of national11igllway traEc safety to critique the "facts" and "analysis" in Co~rrochoilln,loyrri~r,sr@r(r., and by reference, the case 011 wvluch it relied, illichign~rStrrte Police u. Sit& 110 S.0. 2481 (199O)(a 1;ourlh A~nendsent sobrietycl~eckpoint case). The statistician stated by aftitlavit that the probability admnk driver may cause an accident is a hartion of a percent and pointedout the appalling nlisuse of statistics ie C(r~~~~~cho-~Ilorroq~rirr and, by reference,Sitz.5Of course, procedunl due process contemplates 11eari11gs owdisputedo@rdicatir:e facts, suc11 as wl~ether the defenda~~t conioiitted clia~ged acts.It does not contemplate evidentia~y hewings over legislative facts leading tocreation of rules of la\+: This leads to the next argp~enl, the separation ofpo\\ns problen~,SIICII as (1) "subsmntial risk" of (2) "use of force" (3) "against anotl~ec"5. The catcll-all provisions violate the Separation of Powers4. Catch-all provisions that allo~v fact finding wit110ut evidence or Doctrinean evidentiary hearing violate fi~ndaaicntal fairnesshticle I, 5 1, of the Constitution vests aU legislative powers in Congress.Pift11 ib~~eudo~ent procetlural due process requires fuodmental himess. Tile Suprene Court iias held tl~at under the separation of powas doctrineEven if courts had the ca~~stitutional power to hue se~~tence enhance~i~e~its only Congress n~ay enact laws. "Is our s)steai, so far at le;~as concernson judicial fact fi~ding, they cannot nuke tl~ose G~dingsiu~ply by judicialnotice, in~posing their subjective beliefs, witl~out e\'idence. Even probationers;mtlparolees are entitled to an evidentia~y hearing, a light topresent evthefederd povee, defining crimes md Gsing penalties are legislative, notjudicld hu~ctiol~s." United Stoles 11. Eums, 333 U.S. 483, 486 (1948)(refusing to enforces l~opelesslya~~~biguo~~s sclltencing law). An important26 VOICE FOR THE DEFENSE w-TCDLA.COM SEPTEMBER 2001