United States District Court, S.D. New York
January 13, 2005.
UNITED STATES OF AMERICA,
JAMES SAGET, Defendant.
The opinion of the court was delivered by: LEWIS KAPLAN, District Judge
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.
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