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August 12, 2010

Big Second Circuit split opinion on sentencing ex post facto issues in white-collar case

The Second Circuit has a long and split sentencing opinion today in US v. Kumar, No. 06-5482 (2d Cir. Aug. 12, 2010) (available here), which gets started this way:

Appeal by Defendants from separate judgments entered in the United States District Court for the Eastern District of New York (I. Leo Glasser, Judge), following guilty pleas by Defendants to several counts of conspiracy, securities and wire fraud, obstruction of justice, and perjury. We hold that Richards’s guilty plea was not constitutionally infirm and that he was properly charged with, and convicted on his guilty plea to, obstruction of justice. We therefore AFFIRM Richards’s judgment of conviction in all respects. We further conclude that the use of the Sentencing Guidelines in effect at the time of sentencing to calculate Defendants’ Guidelines ranges for their fraud offenses, rather than the Guidelines in effect at the time of the commission of those offenses, did not violate the Ex Post Facto clause. We further conclude that the district court properly calculated the loss amount underlying Defendants’ monetary fines and that the district court did not abuse its discretion by denying Kumar an acceptance of responsibility credit in determining his Guidelines range. We further conclude that the district court erroneously failed to award Richards a two-point reduction for acceptance of responsibility. Thus, we AFFIRM Kumar’s sentence in all respects and VACATE Richards’s sentence and REMAND for resentencing.

Judge Sack's lengthy dissent on the ex post fact issue gets started this way:

I disagree, however, with the majority's conclusion that the defendants' sentencing on securities and wire fraud charges on the basis of the "one book" of the Sentencing Guidelines in effect in 2005, long after those violations had been completed, does not violate the constitutional prohibition against ex post facto laws.  The defendants' commission of subsequent obstruction of justice offenses, though related to the underlying securities and wire fraud charges and committed at a time when the 2005 Guidelines would apply, does not, in my view, render those Guidelines applicable to the securities and wire fraud charges because at the time the defendants committed the securities and wire fraud offenses, they did not have "fair notice" of the severity of the penalties to which they might be subjected for them under the later, harsher Guidelines.  To the extent that the majority conclude otherwise, I respectfully dissent.

August 12, 2010 at 11:00 AM | Permalink

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Comments

So long as the sentences meted out were within the statutory range possible when the offenses were committed I don't see the dissent as having a winning argument. Ex post facto, at least as SCOTUS has spoken on the matter, would appear to concern itself with what punishment is theoretically possible, not with the procedure that determines how an actual sentence will be calculated.

Now, if in addition to the guideline changes there had been a change in the statutory maximum then the dissent would be onto something.

Posted by: Soronel Haetir | Aug 12, 2010 12:23:04 PM

Student:

Whether the EPF Clause applies to the Guidelines is not at issue in this case; both the majority and the dissent assume that it does.

Posted by: Hal | Aug 12, 2010 12:29:20 PM

horse pucky!

this!

"We further conclude that the use of the Sentencing Guidelines in effect at the time of sentencing to calculate Defendants’ Guidelines ranges for their fraud offenses, rather than the Guidelines in effect at the time of the commission of those offenses, did not violate the Ex Post Facto clause."

Is a text book example of an ex post violation. you are required to use the law in effect at the time of the crime! PERIOD!

Posted by: rodsmith | Aug 12, 2010 5:25:30 PM

the way these little idiots read it you could get a criminal defendant you hate who is looking at little or no time. So you drag out the case while having the law rewritten then hammer him with the new law.

SORRY it doesnt' pass the smell test!

Posted by: rodsmith | Aug 12, 2010 5:27:04 PM

The more of these decisions I wade through the more obvious it seems there's a clear path of legal reasoning to almost any predetermined outcome desired by government authorities and their predecessors who now hold sway in the appellate courts.

Every once in a while a rare jurist like Judge Sack stands out for trying, usually in a dissenting (losing) cause, to see things fairly. Otherwise the appeals process looks pretty much like an opportunity for the legions of former prosecutors and conservative trial judges who run the appellate courts to show the colors.

The wonder is why citizens convicted of crimes bother filing appeals at all.

Posted by: John K | Aug 13, 2010 10:02:56 AM

"The wonder is why citizens convicted of crimes bother filing appeals at all."

Don't have much choice john k! It's either do that. Or face the truth that our entire system is broken probably beyond the hope of repair with anything short of ARMRED REVOLT!

Posted by: rodsmith | Aug 13, 2010 11:13:26 AM

I thought it was pretty clear-cut, and even provided for by the guidelines themselves, that you use the guidelines currently in force, *unless* they are harsher than those in force at the time of the offense, in which case you use the earlier guidelines.

It sounds like the government had a convoluted theory as to why this simple rule shouldn't apply (they often do have such a theory when they can sniff a more punitive sentence). I am not buying it.

Posted by: anon | Aug 16, 2010 12:49:09 PM

I would not be shocked to see this issue (i.e., whether application of the "One-book rule" can constitute an ex post facto violation under circumstances like those in this case) in the Supreme Court next term (assuming en banc proceedings do not delay its arrival at the Court's door). There is a circuit split, and the Court seems to have been interested lately in this kind of issue, dealing with basic notice/fairness/due process issues in federal criminal law.

I hope they cert this.

Posted by: Observer | Aug 16, 2010 1:19:08 PM

"*unless* they are harsher than those in force at the time of the offense, in which case you use the earlier guidelines."

Actually, the guidelines state that the current version applies unless that application would present an ex post facto problem. The question in this case is whether the one-book rule cures the ex post facto problem, despite the harsher penalty.

Posted by: Hal | Aug 16, 2010 2:49:36 PM

Hey -- at least you got the balls to get into the ring. All these gutless Koscheck bashers should try putin the gloves on..

Posted by: charms thomas sabo | Dec 16, 2010 3:01:43 AM

For pete sakes she is a menace to relaxed society..hey my avatar is the Princess ring to give Santa ideas.

Posted by: charms thomas sabo | Dec 16, 2010 3:16:43 AM

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