Pre-Booker preponderance standard still applies to judge-found facts used to determine guideline sentencing range

SENTENCING United States v. Magallanez, No. 04-8021, ___ F.3d ___ (10th Cir. May 17, 2005)(Wyoming). Appeal of conviction and sentence for conspiracy to possess with intent to distribute methamphetamine in violation of 21 U.S.C. §§ 846 and 841(a)(1). HELD: Under post-Booker sentencing regime, district court properly sentenced defendant based on judge-found fact of 1200 grams of methamphetamine despite jury finding of just 50 grams. After Booker, while district courts must only consider applicable guideline sentencing range, facts used to establish that range are still determined through use of preponderance standard. Application of logic of United States v. Watts, 519 U.S. 148 (1997), to guideline system as modified by Booker, requires conclusion that when district court makes determination of sentencing facts by preponderance test under now-advisory guidelines, it is not bound by jury determinations reached through more stringent reasonable doubt standard. Read the opinion here.