May 27, 2010
Fourth Circuit rules that Ex Post Facto Clause still limits application of new advisory guidelinesIn an interesting and thoughtful new split ruling, the majority of a panel of the Fourth Circuit has today ruled in US v. Lewis, No. 09-4343 (4th Cir. March 27, 2010) (available here), that the Ex Post Facto Clause still limits the authority of district courts to rely on newer, more severe, now-advisory federal sentencing guidelines. Here is how this important new opinion begins:
Derrick E. Lewis appeals from his conviction and sentence in the Eastern District of Virginia for unlawful possession of a firearm by a convicted felon, in contravention of 18 U.S.C. § 922(g)(1). After Lewis committed the offense of conviction, but before he was sentenced, the Sentencing Guidelines were amended to include a higher base offense level for the offense, resulting in an advisory Guidelines range that was nearly double that calculated under the Guidelines in effect at the time of his offense. After determining that application of the amended 2008 Guidelines would contravene the Ex Post Facto Clause of the Constitution, the district court applied the 2005 Guidelines in effect at the time of the offense of conviction. See United States v. Lewis, 603 F. Supp. 2d 874 (E.D. Va. 2009). The Government has appealed from the court’s Ex Post Facto Clause ruling. Lewis has cross-appealed, contending that the court erred in denying his motion to suppress the firearm underlying his conviction. As explained below, we reject both contentions and affirm.
And here is how the Lewis opinion frames the debate on this issue and explains its basic ruling:
In 2005, however, the Booker decision of the Supreme Court rendered the Guidelines advisory. See United States v. Booker, 543 U.S. 220, 245 (2005). Post-Booker, the courts of appeals have disagreed on whether the Ex Post Facto Clause prohibits a sentencing court from retroactively applying severity-enhancing Guidelines amendments. In United States v. Turner, the D.C. Circuit recognized this disagreement and ruled that such retroactive application contravenes the Ex Post Facto Clause. See 548 F.3d 1094, 1100 (D.C. Cir. 2008). Two years earlier, the Seventh Circuit had concluded, in United States v. Demaree, that the Ex Post Facto Clause does not bar retroactive application of severity-increasing Guidelines amendments. See459 F.3d 791, 795 (7th Cir. 2006). Although we have previously recognized this circuit split, we have not had occasion to rule on the issue. See, e.g., United States v. Rooks, 596 F.3d 204, 214 n.11 (4th Cir. 2010).
Because the Guidelines represent the crucial "starting point," as well as the "initial benchmark," for the regimented sentencing process employed by the sentencing courts within this Circuit, see Gall v. United States, 552 U.S. 38, 49 (2007), an increased advisory Guidelines range poses a significant risk that a defendant will be subject to increased punishment. Accordingly, as explained below, we join the D.C. Circuit in concluding — as did the district court — that the retroactive application of severity-enhancing Guidelines amendments contravenes the Ex Post Facto Clause. See Turner, 548 F.3d at 1100.
Intriguingly, Chief District Judge Joseph Goodwin dissents from this part of the panel's ruling, and his thoughtful dissenting opinion starts this way:
Although I agree with my colleagues on the motion to suppress issue, I cannot join the ex post facto aspect of the majority opinion. The majority holds that the retroactive application of a revised Sentencing Guideline range that results in a higher recommended sentence violates the Constitution’s ex post facto prohibition. In so doing, the majority ignores the reality that the Guidelines lack legal force. It also creates a constitutional contradiction by ignoring the Sixth Amendment implications of treating the Guidelines as anything more than advisory. Therefore, I respectfully dissent.
If the government decides to appeal this ruling to the Supreme Court (and I am not sure that it will, at least not until after perhaps trying to take this matter en banc), I think a cert grant would be pretty likely.
May 27, 2010 at 01:19 PM | Permalink
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The link doesn't lead me to the cited opinion, and I can't find a case by that docket number on the 4th Circuit's website. Do you have any other links to the case?
Posted by: Jonathan | May 27, 2010 3:03:49 PM
Here it is:
The Fourth is a little sluggish getting opinions out to the general public.
Posted by: JDB | May 27, 2010 3:35:52 PM
In so doing, the majority ignores the reality that the Guidelines lack legal force."
Ironic, since the real "reality" is that the Guidelines still hold heavy legal sway, even if they are not binding.
Posted by: FPD | May 27, 2010 4:51:51 PM
It’s more than ironic. If a sentencing judge ignored the guidelines, he would be reversed. They are required to be calculated in every case. They clearly have some force. It’s just that they are not totally controlling.
Posted by: Marc Shepherd | May 27, 2010 5:18:37 PM
Are you aware of any Sixth Circuit cases discussing ex post facto and the guidelines?
Although CJ Goodwin's point is well-taken--how can there be ex post facto anything when we are only talking about guidelines--this is weakened by the simple fact that the guidelines are sort of the reasonableness std. for sentence review up and down the judiciary. Furthermore, as an aside, one suspects that when Article I was drafted, the drafters would have considered legislative butting into the realm of judging and "recommending" sentences as an interruption of due process. Just as if H.M. James II (i.e., the Crown) had done so.
Anyway, I am seeking to think out an argument where the ex post facto issue is backed not just back to the date of the offence sub judice, but is backed all the way to the predicate offences in the criminal history. Logically, any negative change in the way the older crimes are counted acts as an add'l punishment on those crimes. It is like being sent back to jail for a past offence. Yet, it is difficult to think this out in terms of ex post facto argument for a crime and sentence TODAY.
Posted by: Robert Salyer | Jul 23, 2010 5:04:06 PM
Perhaps I should be thinking in Double Jeopardy terms. But there is clearly no prohibition against using an old crime to increase punishment (with or without guidelines). Thus, strict double jeopardy doesn't apply. It is the change to the guidelines that is the lifeline. If changing a recommendation from the time of offence to time of sentence violates ex post facto, why not from old offence to new offence? It is a really difficult interweave of the two prohibitions.
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