Sentencing Court Must Apply Preponderance Standard to Guidelines Factfindings, Even After Booker

United States v. Salazar, No. 06-0198-cr (2d Cir. June 13, 2007) (per curiam) (Sack, B.D. Parker, Hall, C.JJ.).

The headline says it all. Or almost. The court notes that the Guidelines say that the preponderance standard is “appropriate” to Guidelines findings, U.S.S.G. § 6A1.3, comment., and concludes: “[T]he discretion afforded district judges by Booker applies only to their consideration of a Guidelines range as one of the § 3553(a) factors after that range has been calculated. Booker does not affect a district judge’s obligation to perform a Guidelines calculation or the burden of proof applicable to facts relevant to sentencing upon which that Guidelines calculation is made.”