Does a defendant have to plead guilty to a charge of straddle crime?

Our recent decision in United States v. Underwood, 932 F.2d 1049 (2d Cir.1991) has, in part, spoken to the issue. In Underwood, we concluded that the decision of whether an offense is a straddle crime is to be made by a judge at sentencing. In rejecting the defendant's claim that such a determination was to be left to the jury, we stated, "the factual determination as to whether [defendant's] offense continued past the effective date of the Guidelines is ... a 'sentencing factor,' and may be resolved by the district court using a preponderance of the evidence standard." Id. at 1053. Implicit in this holding is the conclusion that a court will determine whether an offense is a straddle crime by considering facts adduced at trial or during an allocution, rather than by mechanically viewing the charge. Since the period during which an offense occurs is considered a "sentencing factor" to be determined by a judge--instead of an element of the offense to be determined by a jury--a court may conclude that defendant's participation in the charged offense ceased before the time period alleged in the indictment had elapsed. Although a defendant has pleaded guilty to an entire charge, a court still retains the authority to determine, by a preponderance of the evidence, applicable sentencing factors.