First Circuit discusses (and sort-of dodges) post-Booker ex post facto issue

Today through a notable opinion in US v. Rodriguez, No. 09-1429 (1st Cir. Dec. 28, 2010) (available here), a First Circuit panel thoughtfully discusses and then kind-of dodges 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 are snippets of the Rodriguez opinion:

Congress tells them to use the Guidelines in force at the time of sentencing. See 18 U.S.C. § 3553(a)(4)(A).  But if doing that would infract the Constitution's ex post facto clause, the Commission directs them to use the edition in effect on the day the defendant committed the crime. See USSG § 1B1.11(b)(1) (policy statement).   We too tell judges to use the old version if the new one raises ex post facto concerns. Reduced to essentials, our set protocol runs this way: "[W]e ordinarily employ the [G]uidelines in effect at sentencing only where they are as lenient as those in effect at the time of the offense; when the [G]uidelines have been made more severe in the interim, the version in effect at the time of the crime is normally used . . . ." United States v. Maldonado, 242 F.3d 1, 5 (1st Cir. 2001)...; Created in a commonsense way, this firm practice has shaped the contours of our caselaw pre- and post-Booker, helping judges "avoid any hint of ex post facto increase in penalty." See Maldonado, 242 F.3d at 5.  And avoiding even the slightest suggestion of an ex post facto problem in these circumstances makes eminently good sense regardless of whether the practice stems from a constitutional imperative.

But that does not mean that judges who start with old Guidelines cannot consult new ones in choosing suitable sentences.  Quite the contrary.  Exercising their Booker discretion, judges mulling over the multiple criteria in § 3553(a) can turn to post-offense Guidelines revisions to help select reasonable sentences that (among other things) capture the seriousness of the crimes and impose the right level of deterrence.  See United States v. Gilmore, 599 F.3d 160, 166 (2d Cir. 2010) (holding that consulting later-amended Guidelines like this raises no ex post facto concerns).

We come full circle.  Because we need not rest our commonsense protocol on a constitutional command -- a holding that squares with the general principle of steering clear of unnecessary constitutional decisions -- we do not have to take sides in the inter-circuit conflict highlighted above.  And now we turn to Rodriguez's case

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

• Seventh Circuit holds ex post facto no longer applicable to guideline changes after Booker
• DC Circuit produces crisp split on ex post issues after Booker (finally!!)
• Fourth Circuit rules that Ex Post Facto Clause still limits application of new advisory guidelines
• A notable district court opinion on the post-Booker ex post facto issue
• Sixth Circuit (sort of?) addresses post-Booker ex post facto issue
• Second Circuit weighs in thoughtfully on post-Booker ex post facto issues