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August 3, 2005

Ninth Circuit rejects ex post/due process limit on applying Booker remedy

The Ninth Circuit today in US v. Dupas, No. 04-50055 (9th Cir. Aug. 3, 2005) (available here) rejected the defendant's claim that "the retroactivity principles of the Fifth Amendment's Due Process Clause preclude the retroactive application of the remedial holding of" Booker.  The Dupas ruling provides thoughtful treatment of the issue in the course of explaining why the defendant's "argument suffers from three fatal flaws." 

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, though I think the only strong claim arises if/when defendant gets a higher sentence post-Booker than he could have legally received pre-Booker.  I do not believe Dupas directly addresses this issue (though the First Circuit has in Lata discussed here), but the broad language in Dupa suggests that increased post-Booker sentences will be considered constitutionally sound. 

Also of great post-Booker import is a footnote in Dupas which rejects a claim for the application of the proof standard of beyond a reasonable doubt at sentencing: "One of [the defendant's] arguments — that sentencing facts must be proved to the court beyond a reasonable doubt — is foreclosed by Ameline.  In Ameline, we explained that the district court must continue to apply the burdens of proof set forth in United States v. Howard, 894 F.2d 1085, 1089-90 (9th Cir. 1990). 409 F.3d at 1085-86."

I will be interested to see what the folks at the Ninth Circuit Blog think about Dupas.

August 3, 2005 at 02:19 PM | Permalink


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I am not sure that the Dupas decision will
govern the pure guideline ex post facto issue
addressed and left partially open by the 1st
Circuit in Lata. Duncan, on which Dupas
relies, does not reach the Lata issue. Nor
is it clear that the alternative holding in
Dupas as to Bouie's inapplicability to mere
sentence enhancements would -- even if it
otherwise holds up -- carry over to the
excision of a sentencing statute as in Booker.

Posted by: Richard K. | Aug 3, 2005 4:10:53 PM

I have a client (in the Ninth Circuit) who was sentenced pre-Booker and had a guideline range of 0-6 months. He received 5 years of probation even though the guidelines maximum was 3 years, in what appears to just be an inadvertant error and not the court intentionally disregarding the guidelines. The probation statutory maximum is 5 years. I believe Dupas precludes any viable argument that he cannot receive more than 3 years probation when he is resentenced. Anyone have any ideas or comments.

Posted by: Greg Silvey | Aug 3, 2005 4:58:58 PM

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