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.