A Curious Decision Containing Excellent Anti-Harris Dicta

United States v. Sheikh, Docket No. 05-1747-cr (2d Cir. Jan. 5, 2006) (Meskill, Sotomayor, Kaplan (by desig'n)): We were puzzled by why the Court decided to publish this very short opinion, in which the Court rejects the defendant's claim that "the district court violated his [Fifth and Sixth Amendment] rights by enhancing his sentence on the basis of a fact -- the loss amount -- not alleged in the indictment," even where the sentence did not exceed the statutory maximum for the offense of conviction. Our puzzlement stems both from the fact that this argument was essentially rejected in Booker, and the fact that the Court simultaneously issued an unpublished summary order rejecting other arguments raised by Sheikh -- thus evidencing a conscious choice to publish this decision on a well-settled issue.

Readers, if there are any, are invited to offer speculations as to the Court's motive. This Blog's best guess is that the Court felt it necessary to address the indictment issue as it relates to Booker, though that seems an argument long lost.

Another guess is that Judge Sotomayor so dislikes the Supreme Court's decision in Harris -- holding that a mandatory minimum sentence can be triggered by judge-found facts -- that she decided to inject some anti-Harris dicta into this simple case. There are two key passages, one in the opinion's introductory paragraph and the other in its concluding paragraph:

"[We] hold that, after United States v. Booker, ___ U.S. ___, 125 S. Ct. 738 (2005), district courts may continue to calculate Guidelines sentences and sentence defendants based on facts not alleged in the indictment, as long as those facts do not trigger a mandatory minimum sentence or increase the penalty beyond the prescribed statutory maximum sentence, without violating the Fifth and Sixth Amendment."

"So long as the facts found by the district court do not trigger a mandatory minimum sentence authorized by the verdict or increase the sentence beyond the statutory maximum authorized by the verdict, the district court does not violate a defendant's Fifth and Sixth Amendment rights by imposing a sentence based on facts not alleged in the indictment."

Op. at 2 & 4 (emphases added). Advocates faced with a Harris issue should pounce on this language!