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September 1, 2010

Second Circuit weighs in thoughtfully on post-Booker ex post facto issues

Today in a relatively short opinion in US v. Ortiz, No. 08-2648 (2d Cir. Sept. 1, 2010) (available here), a Second Circuit panel addresses the (circuit-splitting) issue of whether the ex post facto clause limits application of the latest version of the federal sentencing guidelines in a post-Booker advisory sentencing world.  Here is the start of the Ortiz opinion:

This appeal primarily presents the issue of whether, and under what circumstances, a more onerous guideline, issued by the United States Sentencing Commission after the date of an offense, renders a sentence imposed under the advisory Guidelines regime in violation of the Ex Post Facto Clause.  The issue arises on an appeal by Defendant-Appellant Eric Ortiz from the May 27, 2008, judgment of the District Court for the Eastern District of New York (Dora L. Irizarry, District Judge).  We conclude that such a sentence can violate the Clause, but that the Clause was not violated in the circumstances of this case.  We therefore affirm.

A few related posts on post-Booker ex post issues:

September 1, 2010 at 12:05 PM | Permalink


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