Fourth Circuit rules that Ex Post Facto Clause still limits application of new advisory guidelines

In an interesting and thoughtful new split ruling, the majority of a panel of the Fourth Circuit has today ruled in US v. Lewis, No. 09-4343 (4th Cir. March 27, 2010) (available here), that the Ex Post Facto Clause still limits the authority of district courts to rely on newer, more severe, now-advisory federal sentencing guidelines. Here is how this important new opinion begins:

Derrick E. Lewis appeals from his conviction and sentence in the Eastern District of Virginia for unlawful possession of a firearm by a convicted felon, in contravention of 18 U.S.C. § 922(g)(1).  After Lewis committed the offense of conviction, but before he was sentenced, the Sentencing Guidelines were amended to include a higher base offense level for the offense, resulting in an advisory Guidelines range that was nearly double that calculated under the Guidelines in effect at the time of his offense.  After determining that application of the amended 2008 Guidelines would contravene the Ex Post Facto Clause of the Constitution, the district court applied the 2005 Guidelines in effect at the time of the offense of conviction. See United States v. Lewis, 603 F. Supp. 2d 874 (E.D. Va. 2009).  The Government has appealed from the court’s Ex Post Facto Clause ruling. Lewis has cross-appealed, contending that the court erred in denying his motion to suppress the firearm underlying his conviction.  As explained below, we reject both contentions and affirm.

And here is how the Lewis opinion frames the debate on this issue and explains its basic ruling:

In 2005, however, the Booker decision of the Supreme Court rendered the Guidelines advisory. See United States v. Booker, 543 U.S. 220, 245 (2005).  Post-Booker, the courts of appeals have disagreed on whether the Ex Post Facto Clause prohibits a sentencing court from retroactively applying severity-enhancing Guidelines amendments. In United States v. Turner, the D.C. Circuit recognized this disagreement and ruled that such retroactive application contravenes the Ex Post Facto Clause. See 548 F.3d 1094, 1100 (D.C. Cir. 2008).  Two years earlier, the Seventh Circuit had concluded, in United States v. Demaree, that the Ex Post Facto Clause does not bar retroactive application of severity-increasing Guidelines amendments.  See459 F.3d 791, 795 (7th Cir. 2006). Although we have previously recognized this circuit split, we have not had occasion to rule on the issue. See, e.g., United States v. Rooks, 596 F.3d 204, 214 n.11 (4th Cir. 2010).

Because the Guidelines represent the crucial "starting point," as well as the "initial benchmark," for the regimented sentencing process employed by the sentencing courts within this Circuit, see Gall v. United States, 552 U.S. 38, 49 (2007), an increased advisory Guidelines range poses a significant risk that a defendant will be subject to increased punishment.  Accordingly, as explained below, we join the D.C. Circuit in concluding — as did the district court — that the retroactive application of severity-enhancing Guidelines amendments contravenes the Ex Post Facto Clause.  See Turner, 548 F.3d at 1100.

Intriguingly, Chief District Judge Joseph Goodwin dissents from this part of the panel's ruling, and his thoughtful dissenting opinion starts this way:

Although I agree with my colleagues on the motion to suppress issue, I cannot join the ex post facto aspect of the majority opinion.  The majority holds that the retroactive application of a revised Sentencing Guideline range that results in a higher recommended sentence violates the Constitution’s ex post facto prohibition.  In so doing, the majority ignores the reality that the Guidelines lack legal force.  It also creates a constitutional contradiction by ignoring the Sixth Amendment implications of treating the Guidelines as anything more than advisory.  Therefore, I respectfully dissent.

If the government decides to appeal this ruling to the Supreme Court (and I am not sure that it will, at least not until after perhaps trying to take this matter en banc), I think a cert grant would be pretty likely.