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June 22, 2005

Significant ex post facto ruling from the 8th Circuit

Though I could say a lot more about AG Alberto Gonzales'  speech advocating a Booker fix (basics here, background here, commentary here and here), I have to get back to the circuit beat because there is a lot transpiring on that front.  For example, I have heard that the Fourth Circuit has recently issued orders in some post-Booker GVRed cases asking for supplemental briefs on the application of Hughes, White, and Blick to those cases.  In addition, Appellate Law & Practice has the scoop here on two notable (and very long) Second Circuit sentencing decisions, Garcia and Canova, that came down yesterday.  I'll post more about these developments later as time permits.

But first I must spotlight what I consider to be a notable ex post facto ruling from the 8th Circuit in US v. Borer, No. 03-2903 (8th Cir. June 22, 2005) (available here).  In Borer, the court rejected a government argument that the defendant was ineligible for a three-level acceptance of responsibility reduction under ยง 3E1.1(b) because the PROTECT Act (which was passed after the defendant's offense) added a government motion requirement for the third-level reduction.  And in so doing, the Eighth Circuit had these bold assertions about the application of the Ex Post Facto clause in this setting:

We think it evident that the government's position is inconsistent with the Ex Post Facto Clause. The addition of the motion requirement changes the operation of the guideline to Borer's detriment after his commission of the offense.  The PROTECT Act amendment made it materially more difficult for Borer to earn a reduction for acceptance of responsibility by adding a requirement that the government authorize the court to grant a third level reduction.  As a result, the statute was "retrospective and more onerous than the law in effect on the date of the offense." Weaver v. Graham, 450 U.S. 24, 30-31 (1981). The amended guideline would result in a substantial disadvantage to Borer because he would receive a longer sentence for the same conduct simply because he did not receive a motion from the government.

And, at the close of this quote, the Borer court provides a long string cite with quotes from relevant Supreme Court rulings.

Though I do not think this holding is ground-breaking, the language caught my eye in part because there is a lot of post-Booker discussions (among the defense bar and on this blog) about the application of ex post facto and due process principles to post-Booker sentencings.  And, of course, if there is any effort to apply any part of a post-Booker "fix" retroactively, we will surely see lots and lots of ex post facto litigation.

June 22, 2005 at 02:42 PM | Permalink


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I am fond of page 4 and footnote 3, where Judge Colloton--formerly the U.S. Attorney for the Southern District of Iowa--chides the U.S. Attorney for the District of Nebraska for taking an unreasonable position that is out of step with what the other U.S. Attorneys have been arguing.

Posted by: Booker Fan | Jun 22, 2005 3:57:48 PM

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