1st Circuit addresses due process/ex post facto issues regarding post-Booker sentences for pre-Booker crimes

In a week marked by major sentencing developments outside the federal courts — e.g., the California Supreme Court's big Blakely decision (basics here, commentary here and here); AG Gonzales' speech advocating a Booker fix (basics here, commentary here and here and here and here) —  the circuits today seem to be doing their best today to take back the sentencing headlines (at least on this blog).  Just moments after learning that today Second Circuit upheld the use of hearsay at sentencing in Martinez, I now also see here from Appellate Law & Practice a big Booker ruling from the 1st Circuit, with a particularly important ex post facto conclusion.

The 1st Circuit's work comes in US v. Lata, No. 04-2051 (1st Cir. June 24, 2005) (available here). Judge Boudin wrote the Lata opinion, and here is the court's opening paragraph:

The appeal in this case presents the question whether a defendant who committed a crime and was sentenced prior to United States v. Booker, 125 S. Ct. 738 (2005), can be given a sentence that is within the statutory maximum but higher than the sentence that he would normally have received (absent departures) under the mandatory guideline regime.  We conclude, without difficulty, that the ex post facto clause of the Constitution is not offended by this result; and, on the present facts, no due process objection to the higher sentence can be maintained.

As detailed in posts here and here and elsewhere, I have repeatedly questioned whether due process/ex post facto principles may provide a ceiling on increasing a post-Booker sentence based on pre-Booker conduct.  I believe Lata, which has an extended discussion of these issues, stands as the strongest statement from a circuit court to date that such increased post-Booker sentences are constitutionally sound.  However, the Lata court does pull its punches a bit:

It is unnecessary for the disposition of this case to adopt a flat and final position on due process objections to post-Booker sentences for pre-Booker crimes. Here, we think it is enough to resolve this case that even viewed as of the time Lata committed the crime — post-Apprendi but pre-Blakely — someone in Lata's position could not reasonably be surprised by the sentence he eventually received.  Whether or not exactly the same sentence would necessarily have been imposed by departures under the guidelines is necessarily uncertain.  But the sentence imposed is not wildly different than a sentence that might well have been imposed under the guidelines for someone with Lata's criminal record and offense-related conduct.

Even under mandatory guidelines, a defendant with a criminal record not fully reflected by criminal history points was always on notice that the top of his guideline range might be exceeded. Lata's pre-sentence report indicated that an upward departure might be warranted because of the character of his criminal record.  Nothing in the guidelines flatly forbad the judge from departing based on the fear induced by the threat of the bomb and gun. The result does not violate the due process clause.

We reserve for the future the case, if one ever arises, in which a sentence is imposed for a pre-Booker crime that is higher than any that might realistically have been imagined at the time of the crime or based on factors previously discouraged, prohibited, or not recognized under the guidelines.  As we have seen, any prospective guideline range estimated before the crime has been committed is far more contingent and uncertain than may be true on the day of sentencing.  And, since post-Booker sentences are open to review for reasonableness, Booker, 125 S. Ct. at 765-66, extreme sentences at the very least will rarely survive ordinary review so as to present the naked due process question.

In addition to this interesting and important discussion of process/ex post facto principles, the Lata case also has some interesting Booker talk, as noted here, in conjunction with the court's decision to remand for resentencing.  And, to throw in one last observation about Lata, I found notable (and somewhat surprising) that one of the judges sitting by designation on the First Circuit panel was US District Judge Nancy Gertner, who has tended to be more defendant-friendly in her view of the post-Booker world (as evidenced by opinions noted here and here and here).