DC Circuit notes, then avoids, circuit split over ex post facto Booker issue

The DC Circuit yesterday in US v. Andrews, No. 07-3024 (DC Cir. July 15, 2008) (available here), had this notable discussion, and dodge, of ex post facto issues after Booker:

[I]n its 2005 opinion in United States v. Booker, the Supreme Court held that the Sentencing Guidelines must now be regarded as advisory rather than mandatory. 543 U.S. at 245. This circuit has not yet determined whether, after Booker, application of a later (than the date-of-offense) Guidelines Manual that yields a higher sentence continues to raise an ex post facto problem. Nor has the Supreme Court. The Seventh Circuit has concluded that use of a later Manual no longer presents such a problem, holding that “the ex post facto clause should apply only to laws and regulations that bind rather than advise.” United States v. Demaree, 459 F.3d 791, 795 (7th Cir. 2006). Some other courts have indicated their agreement.  See United States v. Mathis, 239 F. App’x 513, 517 n.2 (11th Cir. 2007); United States v. Barton, 455 F.3d 649, 655 n.4 (6th Cir. 2006); see also United States v. Rodarte-Vasquez, 488 F.3d 316, 325 (5th Cir. 2007) (Jones, C.J., concurring).  The Eighth Circuit, however, disagrees.  See United States v. Carter, 490 F.3d 641, 643 (8th Cir. 2007).  And several other circuits also appear to regard the ex post facto analysis as unchanged, continuing to apply Guidelines § 1B1.11(b)(1) in the same way they did before Booker.  See United States v. Gilman, 478 F.3d 440, 449 (1st Cir. 2007); United States v. Wood, 486 F.3d 781, 791 (3d Cir. 2007); United States v. Austin, 479 F.3d 363, 367 (5th Cir. 2007); United States v. Stevens, 462 F.3d 1169, 1170 (9th Cir. 2006).

We do not need to decide which side of that circuit split we would join in order to resolve this case. “Even assuming the district court erred, . . . absent an opinion by this circuit or the Supreme Court on the issue in dispute, there is no plain error unless [the] district court failed to follow [an] ‘absolutely clear’ legal norm . . . .” United States v. Vizcaino, 202 F.3d 345, 348 (D.C. Cir. 2000) (quoting United States v. Merlos, 8 F.3d 48, 51 (D.C. Cir. 1993)). And there is no such absolutely clear norm here.

I continue to be surprised that this issue has been under-litigated in all the circuits, though part of the reason surely involves the fact that defendants and prosecutors general agree that ex post facto principles still apply after Booker.  At some point, this issue has to make it to SCOTUS, the the DC CIrcuit dodge in Andrews highlights one of many reasons why this issue has been under-developed even 3+ years after Booker.