United States v. William Byrd, Docket No. 04-3607-cr (2d Cir. June 24, 2005) (Walker, Cardamon, Owen, D.J.) (per curiam): The Circuit holds in this very short opinion that the preponderance standard governs the determination of whether a defendant has breached a plea agreement, even after Booker. The entirety of the Court's reasoning is this: "Booker. . . did not speak to nor, in our view, affect the appropriate standard of proof applicable to a finding that the defendant breached his plea agreement. Such a finding was before Booker, and remains after Booker, within the province of the sentencing judge subject to a preponderance of the evidence standard." Op. at 3.
In itself, this decision is not of great significance. One wonders, however, what effect Byrd will have on a far more significant question that remains open in the Circuit: What is the appropriate standard of proof for fact-findings at sentencing that greatly increase the defendant's sentencing range, especially if those facts concern either acquitted conduct or uncharged conduct?
In itself, this decision is not of great significance. One wonders, however, what effect Byrd will have on a far more significant question that remains open in the Circuit: What is the appropriate standard of proof for fact-findings at sentencing that greatly increase the defendant's sentencing range, especially if those facts concern either acquitted conduct or uncharged conduct?