Judicial fact-finding at sentencing by preponderance of evidence standard is not per se unconstitutional under Booker

SENTENCING United States v. Dalton, No. 04-7043, ___ F.3d ___(10th Cir. June 1, 2005)(E.D. Oklahoma). Appeal of sentence for conspiracy to distribute methamphetamine in violation of 21 U.S.C. § 841 and 846. HELD: Supreme Court’s holding in United States v. Booker, 125 S.Ct. 738 (2005), does not render judicial fact-finding at sentencing by preponderance of evidence standard per se unconstitutional. Under Booker’s remedial portion, such fact-finding is unconstitutional only when it operates to increase defendant’s sentence mandatorily. Read the opinion here.