FN. 2 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.
As noted on Prof. Berman's blog, the Third Circuit in a not-precedential opinion, US v. King (No. 03-4715, 4/14/05), has attached a fascinating footnote about Booker which seems to say that the district courts cannot apply enhancements unless they were found by the jury beyond a reasonable doubt or admitted by the defendant. (The Circuit remanded for resentencing in light of Booker.) Here is the footnote: