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July 5, 2007

Another circuit decision failing to grapple with the ex post impact of Booker

Last year, the Seventh Circuit ruled in Demaree that, since the federal sentencing guidelines are now advisory after Booker, 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).  However, as detailed here and here, the implications of Booker for pre-Booker ex post facto doctrines has been woefully under-examined as other district and circuit courts have failed to consider if Booker might impact pre-Booker ex post doctrines.

Today the Second Circuit in US v. Kilkenny, No. 05-6847 (2d Cir. July 7, 2007) (available here), provides another example of unthinking application of pre-Booker ex post doctrines in a post-Booker world.  Though the Kilkenny opinion provides an extended discussion of the purposes and history of the ex post facto clause, it does not even consider whether and how Booker's change in the guidelines' legal force could change how ex post doctrines are now to be applied in federal sentencing proceedings.

July 5, 2007 at 10:01 PM | Permalink


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If a sentence within the Guidelines range can be subjected to a presumption of reasonableness on appeal, as Rita held, doesn't it follow that the Guidelines range must be accurately calculated using the "correct" book?

Posted by: | Jul 6, 2007 10:42:23 AM

Perhaps the presumption should depend on which "book" is used. Indeed, if the current guidelines are presumptive reasonable, shouldn't sentencing based on an "old book" be viewed as presumptively unreasonable?

Posted by: Doug B. | Jul 6, 2007 3:21:02 PM

If a sentence once was reasonable, then it should always be presumed to be reasonable. Our capacity to reason does not change. Instead, any change in the Guidelines is a change in policy, not in reasonableness. Therefore, in my opinion, the district judge should be permitted, but not required, to choose a sentence within any range established by any set of Guidelines, and the appellate court should presume that such a sentence is reasonable.

Of course, this issue just goes to show that the whole idea of "reasonableness review" is a crock. We're really talking about policy choices, and the Court of Appeals now gets the final say on policy. Calling appellate sentencing review "reasonableness review" does not fix the problem that sentencing is really about a set of policy choices. I am hopeful that Gall and Kimbrough will set the system aright by requiring that the Courts of Appeals be deferential to district-court sentencing decisions (and the Libby pardon may help, I hope), but we'll see in a few months.

Posted by: Mark | Jul 6, 2007 4:02:13 PM

Historically, the "one book/last book" rule applied unless application of the book in effect on the date of the offense resulted in a lower range. In my view, applying a lower Guidelines range from an "old book" due to the Ex Post Facto Clause is not a comment on the reasonableness or unreasonableness of the Guidelines, current or prior. Repeating my prior point: if the version of the book used can affect whether a sentence is subjected to a presumption of reasonableness on appeal, I think Ex Post Facto analysis still has meaning in this post-Rita environment.

Posted by: | Jul 6, 2007 4:55:40 PM

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