Does a judge deny a defendant's Fifth Amendment rights by increasing a prison sentence based on disputed facts the Court did not find beyond a reasonable doubt, but for which the sentence would be stricken as substantively unreasonable on appeal?

QUESTION PRESENTED | This case presents a recurring problem arising when a federal court relies on contested ' facts it did not find beyond a reasonable doubt at sentencing to impose a sentence many years longer than the U.S. Sentencing Guidelines recommend for the charged conduct admitted by an | accused’s guilty plea—facts, without which the Court of Appeals would reverse the sentence as | substantively unreasonable. Judge Erickson’s concurring opinion states the scenario succinctly: Malik Ross stands convicted of embezzling bank funds, not manslaughter or murder. Yet he received a 120-month sentence—more than eight times the high end of the applicable guidelines range—because a judge determined he recklessly fired a gun resulting in the tragic death of a child. Missouri prosecutors expressly declined to charge Ross for the killing. And he disputed his culpability at sentencing, arguing that he fired the shots in self-defense after two individuals confronted him and shot first. Rather than a jury deciding Ross’s guilt beyond a reasonable doubt, however, the sentencing judge found him responsible for homicide under a [preponderance of the evidence, ] more-likely-thannot standard. In light of the foregoing, the question presented here is as follows: Does a judge deny a defendant’s Fifth Amendment rights by increasing a prison sentence based on disputed facts the Court did not find beyond a reasonable doubt, but for which the sentence would be stricken as substantively unreasonable on appeal? 2