Under what circumstances will the US Supreme Court strike down the preponderance standard in sentencing guidelines?

Under our due process jurisprudence, this revolutionary change in judicial discretion has created, for the first time, a liberty interest in a sentence below the statutory maximum. Indeed, in replacing a judgment-driven system with a data-driven system, the Sentencing Reform Act has created a liberty interest in a sentence within the relevant Guidelines range, initially determined by the "base offense level" corresponding to the "offense of conviction." Because an important liberty interest is at stake, we are compelled to carry out independently the relevant due process inquiry mandated by Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). Under our current constitutional jurisprudence, this inquiry leads to the inescapable conclusion that the indiscriminate use of the preponderance standard within the context of Guidelines factfinding raises serious due process questions. A higher standard not only avoids the constitutional question but better serves the goals underlying the statute.

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