Intriguing (and questionable) 3d Circuit Booker dicta

The Third Circuit has been tight-lipped about Booker because it has adopted the unique (and perhaps legally unsound) practice of simply remanding every case with Booker claims, without any plain error discussion, for resentencing in light of Booker.  But today in US v. King, No. 03-4715 (3d Cir. Apr. 14, 2005) (available here), the Third Circuit (in an unpublished decision) dropped a footnote with Booker dicta that is both intriguing and questionable.

Beyond the Booker dicta, King is an interesting case (especially the day before taxes are due).  King was convicted and sentenced to prison for tax evasion, and on appeal he objects to a two-level guidelines enhancement for using sophisticated means to accomplish the offense, and he also contends that his prison sentence resulted from the district judge’s “personal bias in favor of incarcerating tax evaders.”  In an extended opinion, the Third Circuit rejects the defendant’s claims, though still remands for resentencing under Booker.  Along the way, the King court drops this footnote:

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.

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  Because the King opinion is unpublished, this Booker dicta might not be consequential in future cases.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.