Seventh Circuit holds ex post facto no longer applicable to guideline changes after Booker

In what could be an extraordinarily important ruling, the Seventh Circuit today in US v. Demaree, No. 05-4213 (7th Cir. Aug. 11, 2006) (available here) essentially holds that pre-Booker ex post facto limits on the application of the most recent guidelines are no longer applicable now that the guidelines are advisory.  This issue, which I raised in this post a few months ago, has not been thoroughly considered by any other circuit.  But the Demaree ruling seems to cut against what nearly all district and circuit courts have been doing after Booker.

All 8 pages of Demaree are packed with highlights for sentencing geeks, and Judge Posner's opinion also has flourishes that will intrigue constitutional scholars.  Here's the final paragraph:

We conclude that the ex post facto clause should apply only to laws and regulations that bind rather than advise, a principle well established with reference to parole guidelines whose retroactive application is challenged under the ex post facto clause. [Lots of cites] As for the confession of error that the government makes in its brief, the assistant U.S. attorney who argued the appeal acknowledged that the government is waging a rearguard action against Booker and wants the guidelines to bind as tightly as possible because it believes that judges are more likely to use their Booker-conferred discretion to sentence below than above the guidelines sentencing ranges. This produces the paradox that while the ex post facto clause is intended to protect criminal defendants, it is here invoked by the government in the hope that it will lead to longer sentences. It is not an attractive argument.