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September 14, 2006

Ninth Circuit (unwittingly?) creates Booker ex post circuit split

Though the Ninth Circuit's death penalty work in Comer (basics here, commentary here) will likely get more attention, the circuit on Wednesday also rendered a noteworthy federal sentencing opinion in US v. Stevens, No. 05-30597 (9th Cir. Sept. 12, 2006) (available here).  The underlying substantive issue in Stevens involves whether sending pornography to an undercover cop posing as an underage teenager triggers a steep guideline enhancement for "distribution to a minor."  But, for Booker fans, Stevens is most significant for its ex post facto analysis.

Last month, the Seventh Circuit ruled in Demaree that, since the federal sentencing guidelines are now advisory, ex post facto doctrines no longer preclude applying the most recent guidelines even when they call for a longer sentence than the guidelines applicable at the time of the offense (basics here, commentary here).  But, in Stevens, the Ninth Circuit applies its long-standing ex post facto doctrines to a post-Booker sentencing without even considering whether and how Booker might impact ex post facto considerations. 

Because Stevens was argued and submitted before the Demaree ruling, I doubt the parties even raised the possibility that Booker might change ex post facto analysis.  And, since Stevens does not address the issue at all, the panel apparently did not directly consider its implicit holding that Booker does not alter standard ex post facto analysis.  Nevertheless, Stevens and Demaree apparently conflict on which version of the guidelines should be applied after Booker.

Of course, as I have detailed here, there is no shortage of circuit splits over post-Booker sentencing dynamics.  Funny how a remedy purportedly intended to foster national sentencing uniformity has been interpreted and applied in so many disparate ways nationwide.

September 14, 2006 at 07:15 AM | Permalink

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