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December 5, 2008

DC Circuit produces crisp split on ex post issues after Booker (finally!!)

In my view, one of the most interesting and amazingly underexamined post-Booker issue concerns whether or not the conversion of the guidelines to advisory status changed the settled pre-Booker determination that ex post facto doctrine precluded the application of new harsher guidelines to old crimes.  Before today, the only circuit court to seriously engage this (arguably very important) issue was the Seventh Circuit, which held a couple of years ago held in US v. Demaree, 459 F.3d 791 (7th Cir. 2006), that Booker alters the ex post facto analysis.

Though not subject to lots of circuit analysis, Demaree was largely an outlier because most lower courts and most litigants and most probation offices proceeded after Booker as if the old ex postrules still applied.  Indeed, the Justice Department's official position was that Demaree was wrongly decided and that the guidelines applicable at the time of the crime (not the latest guidelines) were to control at sentence.  (Interestingly, I have heard reports that the Justice Department's position on this ex post facto issue has changed since the Supreme Court's ruling in Irizarry, but I am not sure if this is official policy.)

Now, thanks to a ruling today by the DC Circuit in US v. Turner, No. 07-3107 (DC Cir. Dec. 5, 2008) (available here), this fascinating issue is now the subject of a crisp and clear circuit split.  In Turner, the majority opinion explains why it thinks the Seventh Circuit's work in Demaree is washed up in light of controlling Supreme Court law:

The proper approach is therefore to conduct an “as applied” constitutional analysis, see Miller, 482 U.S. at 435, not the sort of facial analysis conducted in Demaree.... Turner did not have to show definitively that he would have received a lesser sentence had the district court used the 2000 Guidelines. See Miller, 482 U.S. at 432.  It is enough that using the 2006 Guidelines created a substantial risk that Turner’s sentence was more severe, thus resulting in a violation of the Ex Post Facto Clause. See Miller, 482 U.S. at 433.

I somewhat doubt that the Justice Department will be inclined to seek cert in this case, so Turnermay not become the case in which the Supreme Court has to grapple with these issues.  But I am excited to see my favorite post-Booker legal conundrum getting some attention, and I suspect it will be only a matter of time before SCOTUS will have to take up this issue.

December 5, 2008 at 11:26 AM | Permalink


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I was recently told by an AUSA in a case I'm involved in that it is their official policy that because the guidelines are advisory, there can be no more ex post facto use of an older guideline.

IIRC, I was told the policy changed in August of this year.

Not sure if it was a policy local to that office, or one coming out of main Justice.

Posted by: | Dec 5, 2008 5:09:17 PM

I am always looking for someone that is not a member of the good ole boy system. But someone who believes in justice. I pled Nola Contedre on advice of Counsel. Who just after my case supposedly was resolved was disbarred, and the ADA who signed off on my case was also disbarred. Am trying to find an attorney that believes in Justice instead of popularity. As many of my civil rights were violated. And due to having to try and make my life bearable after losing just about eveything I owned. People say that since I get 100% Service Connected Disability. I can afford to pay for an attorney. But no one wants to accept that after bills every month have no money left. They refuse to ssay that I am eligible for pro bono help. Where is the justice in tha? And I have to take Lie Detector test every 6 months and have passed even my sexual history except for my instant offense. Which should not have taken at the time I did? As my health was not the best after 8 and a half months in a county jail that should have been condemned before it was. Hopefully this will interest you or you know of something that is not afraid to defend people?I am a 61 yr old service connected Disabiled Vet.

Posted by: Ralph Stegall | Jun 18, 2010 3:25:54 PM

Very Interesting!
Great Job!
Great Blog!
Thanks Guys!

Posted by: מוסך בבאר שבע | Jan 6, 2011 6:39:58 AM

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