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March 12, 2010

Fifth Circuit flags, but dodges, circuit split over advisory guidelines and ex post facto issues

Though decided last month, the Fifth Circuit just revised and re-released an interesting little decision, US v. Castillo-Estevez, No. 09-40096 (5th Cir. Feb. 9, 2010) (available here), which discusses one of my "favorite" unresolved post-Booker sentencing issues. Here is the heart of the ruling:

In United States v. Rodarte-Vasquez, 488 F.3d 316 (5th Cir. 2007) (Jones, C.J., concurring), it was observed that the now-advisory guidelines should not raise ex post facto concerns because “the sentence imposed by the court need not be harsher under later guidelines than it would have been under the guidelines in effect when the offense was committed.”  Rodarte-Vasquez, 488 F.3d at 325.  The Seventh Circuit adopted this view of the guidelines post-Booker in United States v. Demaree, 459 F.3d 791 (7th Cir. 2006), holding that the Ex Post Facto Clause does not apply to sentencing guidelines amendments because it applies “only to laws and regulations that bind rather than advise.” Id. at 794.  See also United States v. Barton, 455 F.3d 649, 655 n.4 (6th Cir. 2006) (“When the Guidelines were mandatory, defendants faced the very real prospect of enhanced sentences caused by changes in the Guidelines . . . that occurred after they had committed their crimes. Now that the Guidelines are advisory, the Guidelines calculation provides no such guarantee of an increased sentence . . . . As such, the Ex Post Facto Clause itself is not implicated.”). But cf. United States v. Turner, 548 F.3d 1094, 1099–1100 (D.C. Cir. 2008) (rejecting the Seventh Circuit’s reasoning in Demaree); United States v. Larabee, 436 F.3d 890, 894 (8th Cir. 2006) (stating post-Booker that “‘retrospective application of the Guidelines implicates the ex post facto clause’”).

We need not determine here whether ex post facto claims arising from the application of evolving sentencing guidelines are viable after Booker.  Even if the district court’s application of the 2008 guidelines violated the ex post facto clause, the error would certainly not be “plain” in light of such post-Booker cases as Rodarte-Vasquez, Demaree, and Barton.  To be “plain,” legal error must be “clear or obvious, rather than subject to reasonable dispute.” Puckett v. United States, 129 S. Ct. 1423, 1429 (2009).... Because the caselaw reveals a “reasonable dispute” regarding the ex post facto implications of retroactive application of the advisory guidelines, the district court’s error, if any, was not plain.

I continue to be surprised no only by the fact that the ex post facto issue remains unresolved five years after the Bookerdecision, but also by the fact that it seems to be so rarely litigated or even addressed.  My sense is that most districts and circuit continue to operate as if ex post facto issues still limit the application of revised guidelines, though I have always been instinctually drawn to the reasoning of Rodarte-Vasquez, Demaree, and Barton.

March 12, 2010 at 04:50 PM | Permalink


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I'm not sure which post-Booker amendments hurt defendants, other than the addition of "offer to sell" to the drug trafficking definition.

I've noticed that Chief Judge Jones, despite officially embracing the principles a limited role for the judiciary, peppers her opinions with footnotes and other dicta that could only be called advisory opinions. That's anecdotal and possibly biased. But nonetheless, it's how I feel. Am I wrong?

Posted by: Texas Lawyer | Mar 12, 2010 8:33:21 PM

TL, you are not wrong

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