should not be permitted to be found by a preponderance of the evidence in the extraordinary case where the factors can be said to be the “tail which wags the dog of the substantive offense.” McMillan, 477 U.S. at 88, 106 S.Ct. 2411. In United States v. Watts, 519 U.S. 148, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997), the Supreme Court reiterated McMillan’s holding “that application of the preponderance standard at sentencing generally satisfies due process,” but recognized the “divergence of opinion among the Circuits as to whether, in extreme circumstances, relevant conduct that would dramatically increase a sentence must be based on clear and convincing evidence.” Watts, 519 U.S. at 156, 117 S.Ct. 633. However, the Court held that the guideline application, which resul 87 (1st Cir.1995) (<HOLDING>). Because the sentences imposed upon the
holding that consideration by a sentencing court of acquitted conduct was appropriate in establishing the applicable guideline range or in determining the sentence to impose within the guideline range holding that sentencing court may depart downward in an extreme case where the application of the  2k21clb crossreference to account for a murder charge of which defendant was acquitted in state court raised the guideline range from 262327 months to a mandatory life sentence but distinguishing cases involving even sizable sentence increases based on an uncharged quantity of drugs  or any number of kindred sentence enhancements holding that a court may depart downward from the applicable guideline range under section 4a13 holding that the defendants sentence did not violate apprendi where the actual sentence imposed did not exceed the maximum penalty corresponding to the quantity of drugs for which the defendant acknowledged responsibility nor was the sentence at the bottom end of a higher statutory range of penalties holding life sentence mandatory under 21 usc  841b and district court could not depart from the mandatory life sentence unless government made a motion