8th Circuit affirms above-range sentence

In this post last week, I commented on above-guideline-range sentences imposed post-Booker, and in previous posts here and here I questioned whether due process/ex post facto principles permit a post-Booker sentence increase above the applicable guidelines range based on pre-Booker conduct.  In an unpublished decision Thursday in US v. Pablo-Lepe, No. 04-2837 (8th Cir. Mar. 31, 2005) (available here), the 8th Circuit affirmed an above-range sentence.

The 8th Circuit in Pablo-Lepe considered a sentence imposed before Booker, though the district court apparently had decided in the wake of Blakely to declare the guidelines advisory and in this case "chose to impose a higher sentence" than the guidelines.  In a three-paragraph per curiam opinion, the 8th Circuit affirms, stating simply that the sentence imposed "was neither unguided nor unreasonable." 

It is unclear whether due process/ex post facto issues were even raised in Pablo-Lepe, and these issues clearly were not addressed by the 8th Circuit's cursory per curiam opinion.  Nevertheless, I believe Pablo-Lepe stands as the first case in which an above-range sentence imposed under advisory guidelines has been affirmed.