Opinion
02 Crim. 0791 (LAK).
January 13, 2005
ORDER
Defendant was convicted after trial of various firearms related offenses and sentenced principally to a term of imprisonment of 120 months. The Second Circuit affirmed in two decisions. See United States v. Saget, 377 F.3d 223 (2d Cir. 2004); United States v. Saget, No. 03-1200, 2004 WL 1950414 (Sept. 3, 2004). In the latter decision, however, the Circuit stated that it was not issuing the mandate pending the Supreme Court's decisions in Booker and Fanfan.
On December 17, 2004, defendant filed this motion (incorrectly denominated a writ of habeas corpus and filed in the criminal action rather than as a new civil proceeding) pursuant to 28 U.S.C. § 2255. The application asserts that defendant's sentence was enhanced on the basis of judicial findings in violation of his right to have such enhancement factors determined beyond a reasonable doubt by a jury.
In view of the Court of Appeals' determination not to issue the mandate pending the decisions in Booker and Fanfan, the motion is premature. The argument made here may be made to the Court of Appeals. Accordingly, the motion is denied.
SO ORDERED.