The Sophisticated Means Enhancement After Booker

The Third Circuit issued an unpublished opinion in United States v. King (here) that discusses the sophisticated means enhancement in Sec. 2T1.1 of the Guidelines in light of Booker.  The defendant entered a guilty plea to tax evasion, and challenged the two-level enhancement for use of a sophisticated means, an argument the Third Circuit rejected, albeit not out of hand.  Doug Berman's keen eye caught the following footnote (see post on Sentencing Law & Policy here) addressing a Booker/Blakely issue:

Our discussion of the sophisticated means enhancement in no way suggests that a sentencing court must apply such an enhancement even where it might otherwise have been appropriate. It is clear that in the post-Booker universe, the district court is free to reject all such enhancements in the appropriate exercise of its discretion. Moreover, to the extent the sentencing court may decide to enhance a sentence based upon factors such as those incorporated into the sophisticated means enhancement, it must rely only upon conduct admitted by the defendant or found by the fact finder based upon proof beyond a reasonable. That fact finder must be a jury unless a defendant waives his/her right to a jury trial. (Emphasis supplied)

Doug raises the following issues about the Third Circuit's footnote: "Though I may be misreading this footnote, the last two sentences seem to suggest the Third Circuit is adopting the remedy of the remedial dissenters, as well as the remedy of the remedial majority in Booker.  Because the King opinion is unpublished, this Booker dicta might not be consequential in future cases.  But this confusing dicta three months after Booker is just another indication of the confusing nature of the Booker ruling."

I think the Third Circuit's approach, although buried in a footnote in an unpublished opinion (how's that for hiding you light under a bushel basket) is similar to that adopted by the Fifth Circuit in United States v. Holmes (here) concerning the Obstruction of Justice/Perjury enhancement (Sec. 3C1.1) (see earlier post here), in which the court stated:

[T]here is more than ample evidence in the record to support the district court's thorough perjury findings.  Nevertheless, because the enhancement was imposed under mandatory guidelines and the jury was not specifically asked and instructed to find beyond a reasonable doubt whether Holmes had committed perjury based on the foregoing elements, there is Booker error. So although we harbor little doubt that, if so asked and instructed, the jury would have reached the same conclusion as the district court--i.e., that Holmes committed perjury--the requisite findings cannot be projected onto the jury's guilty verdict to cure the constitutional error.

At least with regard to Guidelines enhancements that do not relate to the underlying offense conduct (e.g. loss, vulnerable victim), it appears the courts are taking more of a Blakely approach than the Booker advisory approach and requiring that the jury find the facts for the enhancement rather than just the judge.  It would be nice, as Doug points out, if there were some clear guidance in this area.  Then again, H.R. 1528 . . . . (ph)