A notable district court opinion on the post-Booker ex post facto issue

Thanks to this piece in the New York Law Journal, which is headlined "Use of Current Sentencing Rules Barred for 2003 Confession," I see that a New York district court has issued a notable and quite thoughtful ruling addressing post-Booker ex post facto issues in the context of giving a relatively low sentence to a child porn downloader. Here is how the NYLJ piece describes the case and the ruling:

An admitted possessor of child pornography who was not prosecuted for more than four years following his confession in 2003 cannot be subjected to the longer prison sentences established in the interim under the federal sentencing guidelines, a federal judge has ruled.

Southern District of New York Judge Richard J. Holwell said the Constitution's ex post facto clause -- Article I, Section 9, Clause 3 -- would be violated if Brennan Sweeney were sentenced to a longer prison term than the guidelines called for in 2003 when the FBI raided his apartment. Holwell held that "retroactive application of the guidelines increases poses a 'significant risk of increased punishment,'" in United States v. Sweeney, 08-cr-212.

In October 2003, FBI agents found child pornography on Sweeney's computers. Sweeney consented to an interview and admitted to possessing more than 1,000 images of children. The FBI seized his computers but inexplicably did not arrest Sweeney until March 2008. He pleaded guilty in May 2009 to possessing and distributing child pornography.

The guidelines at the time of his confession called for a sentencing range of two years and three months to two years and nine months. But the current guidelines call for a much longer sentence -- a range of six years and six months to eight years and one month.

Holwell sentenced Sweeney on May 27 and followed with a written opinion explaining why it would be unconstitutional to subject the defendant to a term within the higher range even though the federal statute, 18 U.S.C. §3553(a)(4)(A)(ii), requires application of the current guidelines range.

The full opinion in Sweeney is available at this link.

Related posts on post-Booker ex post issues in the circuits:

• Fourth Circuit rules that Ex Post Facto Clause still limits application of new advisory guidelines 
• DC Circuit produces crisp split on ex post issues after Booker (finally!!)
• Seventh Circuit holds ex post facto no longer applicable to guideline changes after Booker