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August 11, 2006

Who will be most sorry about Demaree?

Though seemingly involving a technical ex post facto issue, the Seventh Circuit's ruling in Demaree could (and will?) have a profound impact on post-Booker sentencing (basics here).  At first blush, Demaree may seem like bad news for defendants: it says district courts may (and should?) apply the most recent version of the now-advisory guidelines even when they call for a longer sentence than the guidelines in place when the defendant committed his crime.  But, upon reflection, Demaree might also make judges, prosecutors and probation officers miserable because of the intricate questions the ruling raises. 

Here are just a few questions swirling around my brain after Demaree:

1.  Though Demaree says the ex post facto clause does not preclude a District Court from using the latest guidelines, it doesn't say whether a court should or must use the latest (harsher) guidelines.  May a district judge in the Seventh Circuit still decide, as a matter of policy, to "consider" only an earlier version of the guidelines?  If a judge does rely on an earlier version of the guidelines, does a within-guideline sentence still garner a presumption of reasonableness?  Or, is reliance on any old version of the guidelines per se unreasonable?

2.  For counsel and probation departments, Demaree issues arise well before the day of sentencing.  Should PSRs throughout the Seventh Circuit now only calculate ranges based on the current version of the guidelines even if they are much harsher (e.g., in fraud cases) than the version in place at the time of the crime?  Can prosecutors and defendants stipulate in a plea agreement that only an earlier version of the guidelines should apply?

3.  Will Main Justice, which has argued against the Demaree rule, seek en banc or Supreme Court review ASAP?  In the meantime, must prosecutors in the Seventh Circuit only argue in favor of the current guidelines?  Will prosecutors contend on appeal that only the current guidelines should garner the presumption of reasonableness?  How will main Justice handle this issue when it comes up in other circuits?

4.  Isn't the Seventh Circuit's recent ugly Jointer ruling mandating that the crack guidelines be followed (details here) wildly inconsistent with Demaree?   Demaree stresses that a sentencing judge after Booker need only "consider the guidelines and make sure that the sentence he gives is within the statutory range and consistent with the sentencing factors listed in 18 U.S.C. § 3553(a)."  It also says that a district court's freedom to impose a non-guideline sentence is "unfettered" and subject "to only light appellate review."  Finally, Demaree says a sentencing judge "is certainly entitled to take advice from the Sentencing Commission."

In Jointer, the district judge considered the crack guidelines, followed the USSC's advice that those guidelines are too harsh for low-level dealers, and then exercised his supposedly "unfettered" freedom to impose a (non-guideline) sentence of 7+ years for minor drug sales.  Yet, even though that sentence seems entirely "consistent with the sentencing factors listed in 18 U.S.C. § 3553(a)," the application of purportedly "light appellate review" in the Seventh Circuit resulted in reversal.  Looking at Demaree and Jointer, which were decided only days apart, I must quote an early era computer: "Does not compute, does not compute, does not compute......"

August 11, 2006 at 05:11 PM | Permalink


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I completely disagree with the holding, as well as the logic, in Demaree. Regardless of whether courts sentence under a mandatory, presumptive, or advisory guidelines regime, whenever a court references sentencing guidelines, ex post facto rules should apply.

In the post-Booker "advisory" world, courts are still required to calculate the applicable guideline range. The guidelines therefore play a crucial role in every sentencing, no matter how "unfettered" a court's discreation (as manifested in the relativey unchanged sentencing landscape), because the calculated range acts as a baseline from which courts may choose to depart. Posner may believe that ex post facto rules are not implicated because the guidelines "advise" rather than "bind," but when the invocation of the sentencing guidelines is mandated, that is equivalent to "binding" for purposes of ex post facto analysis.

Applying any sentencing guidelines not in effect at the time the relevant offense occured is unconstitutional and just wrong, regardless of which way the final sentencing outcome of a case may cut.

Posted by: Shawn Davisson | Aug 12, 2006 1:16:04 AM

I'm not sure it's quite so complicated. The Guidelines themselves provide that the default is to use the manual in effect at the time of sentencing (as opposed to at the time of the crime). USSG 1B1.11. This is a statutory requirement as well, see 18 USC 3553(a)(4)(A)(ii), (5)(B), so the commission and judges are not free to do otherwise. There was a built-in safety valve for ex post facto clause. That's now moot, so judges and everyone else involved in sentencing need to follow the current manual. If a judge wants to rely on an old version instead, then at best, that would be reviewed like any other departure from a Guidelines sentence, and more properly, probably should be reversed for failing to comply with a statutory mandate. Cf. Jointer.

And, for what it's worth, I think the court is exactly right -- if the Guidelines aren't binding, the ex post facto clause shouldn't apply. Even if the Guidelines were properly subject to the clause before Booker (on that, see Judge Easterbrook's concurrence in US v. Seacott, 15 F.3d 1380, 1386 (7th Cir. 1994)), they aren't "laws" now.

Posted by: Bill | Aug 14, 2006 10:20:49 AM

It is even less complicated than that. Bottom line: when a crime occurs, only the laws on the books at the time of the offense are applicable--so to should be the case with the Guidelines, "laws" or not (last time I checked, however, a SCOTUS mandate to reference the Guidelines is controlling "law").

Posted by: Shawn Davisson | Aug 14, 2006 12:39:04 PM

no comment on whether demaree was correctly decided, but i think you should know that, just one week later, on aug. 18, a different panel of the 7th circuit held directly to the contrary, i.e., there is a presumption of reasonableness at the district court level, as well as the apellate court level. U.S. v. Hankton.

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