United States v. Sheikh,, Docket No. 05-1747-cr (Fed. 2nd Cir. 1/5/2006), Docket No. 05-1747-cr.

• Decision Date: 05 January 2006
• Docket Number: Docket No. 05-1747-cr.
• Parties: UNITED STATES OF AMERICA, Appellee, v. ZARRAR SHEIKH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

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UNITED STATES OF AMERICA, Appellee, v. ZARRAR SHEIKH, Defendant-Appellant.

Docket No. 05-1747-cr.

United States Court of Appeals, Second Circuit.

Argued: December 22, 2005.

Decided: January 5, 2006.

Defendant-appellant Zarrar Sheikh appeals from a judgment of conviction and sentence for committing mail fraud, in violation of 18 U.S.C. § 1341, and for conspiring to commit securities fraud and mail fraud, in violation of 18 U.S.C. § 371. We address and reject Sheikh's contention that, consistent with the Fifth and Sixth Amendments, a district court may consider only those facts alleged in the indictment in determining a defendant's sentence.

ROBERTO FINZI (Michael Garcia, United States Attorney for the Southern District of New York, Peter G. Neiman, Assistant United States Attorney, of counsel), New York, NY, for Appellee.

BRUNO C. BIER, Bajaj & Associates, PLLC, New York, NY, for Defendant-Appellant.

Before: MESKILL, SOTOMAYOR, Circuit Judges, and KAPLAN, District Judge.^*

SOTOMAYOR, Circuit Judge.

Defendant-appellant Zarrar Sheikh appeals from a judgment entered on March 26, 2005 in the District Court for the Southern District of New York (Jones, J.) sentencing him principally to a 46-month concurrent sentence, following his plea of guilty without a plea agreement, on three counts of mail fraud, in violation of 18 U.S.C. § 1341, and one count of conspiracy to commit securities fraud and mail fraud, in violation of 18 U.S.C. § 371. The 46-month concurrent sentence on each count is below the statutory maximum for each offense of conviction. In a concurrently filed summary order, we address Sheikh's challenge to the district court's calculation of his advisory sentence under the Sentencing Guidelines ("the Guidelines") as based on facts that were not proved to a jury or admitted by him in his guilty plea. Here, we reject Sheikh's remaining contention and 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 or the Sixth Amendment.

BACKGROUND

The indictment in this case charged Sheikh with conspiring to commit securities fraud and mail fraud, and with committing mail fraud, in connection with Opulentica, LLC, a company run by Sheikh that purported to buy and sell stocks on behalf of its investors. The indictment alleged, inter alia, that Sheikh "raised at least approximately $538,000 from approximately 20 investors" in connection with false and misleading statements he made to potential investors about Opulentica. The indictment, however, did not allege a specific loss amount attributable to Sheikh's conduct.

The district court sentenced Sheikh under advisory Guidelines after the Supreme Court's ruling in United States v. Booker, __ U.S. __, 125 S. Ct. 738 (2005). The district judge adopted the government's Guidelines calculation, which included a 14-level enhancement under U.S.S.G. § 2B1.1(b)(1)(H) because Sheikh's crimes resulted in a loss of more than $400,000 but not more than $1,000,000, stating that she "believe[d] that the guideline sentence is a reasonable sentence."

DISCUSSION

Sheikh argues that the Fifth and Sixth Amendments require that district courts may only sentence defendants based on facts alleged in the indictment. He contends that the district court violated his constitutional rights by enhancing his sentence on the basis of a fact — the loss amount — not alleged in the indictment....