Whether a higher degree of protection is required by the due process clause when the sentencing judge uses a mere preponderance standard to determine a higher sentencing guidelines range based on a drug quantity estimate

QUESTIONS PRESENTED Issue 1. In the case at bar the sentencing judge refused to a apply a higher standard than a mere preponderance when the issue was, based on a drug quantity estimate, whether the appropriate sentencing guidelines range was 37 to 46 months, as opposed to 210 to 262 months. Under these circumstances, was a higher degree of protection required by the due process clause? Issue 2. Under United States v. Walton, 908 F.2d 1289, 1302 (6th Cir. 1990, for a judge to adopt a conservative estimate of drug quantity when calculating the federal sentencing guidelines range, “is ... constitutionally required to prevent excessive sentences.” The 1**, 9th and 10» Circuits also recognize and apply the “Walton rule.” The 8th Circuit once recognized and applied the rule but has not for several decades. The need estimate drug quantity is a common occurrence in federal sentencing proceedings and so this Court’s guidance on when the failure to use conservative estimates violates a defendant’s right to be sentenced based on accurate information would be very helpful to the bench and bar. 1