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August 11, 2006

Seventh Circuit holds ex post facto no longer applicable to guideline changes after Booker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here) essentially holds that pre-Booker ex post facto limits on the application of the most recent guidelines are no longer applicable now that the guidelines are advisory.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.

August 11, 2006 at 01:05 PM | Permalink


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When Michigan had advisory guidelines, the Michigan Supreme Court held the use of the harsher guidelines in effect at sentencing, instead of those in effect at the time of the offense, did not violate the ex post facto clause. People v. Potts, 436 Mich. 295, 461 N.W.2d 647 (199). Therefore, this decision does not strike me, as a criminal defense attorney who has practiced under no guidelines, advisory guidelines, and mandatory guidelines, as outside the pale.

Posted by: Gregory B. Jones | Aug 11, 2006 2:28:51 PM

Sorry, that date is 1990.

Posted by: Gregory B. Jones | Aug 11, 2006 2:31:07 PM

The decision is certainly correct if one assumes that the guidelines really are "advisory" post-Booker. Judge Posner certainly thinks so, calling the appellate review "light" and the district judge's discretion "unfettered" post-Booker. I don't think 7th Circuit precedents post-Booker support this view of the guidelines, which seem to be still "quasi-mandatory."

Posted by: Anonymous Lawyer | Aug 11, 2006 3:25:05 PM

While I agree in theory with Posner that "the ex post facto clause should apply only to laws and regulations that bind rather than advise," the reality on the ground (at least where I practice) is that the Guidelines are still very very binding.

Posted by: JDB | Aug 11, 2006 3:56:59 PM

Great Job! Very Interesting!

Posted by: קבוצת רכישה | Jan 6, 2011 6:46:51 AM

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