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August 24, 2010

Sixth Circuit (sort of?) addresses post-Booker ex post facto issue

Today at the end of a long opinion involving some interesting facts, a Sixth Circuit panel in US v. Lanham, No. 08-6504 (6th Cir. Aug. 24, 2010) (available here), has a short discussion of the circuit-splitting issue of whether the ex post facto clause limits application of the latest version of the federal sentencing guidelines in a post-Booker advisory sentencing world.  Here is the Sixth Circuit's entire discussion of this issue toward the very end of the Lanham opinion (with my bold accents added):

The sentencing court is to apply the version of the Sentencing Guidelines in effect at the time of sentencing unless it “determines that use of the Guidelines Manual in effect on the date that the defendant is sentenced would violate the ex post facto clause.” U.S.S.G. § 1B1.11(b)(1).

Defendants committed their offenses in 2003 when the 2002 Guidelines were in effect at the time of the crime. The 2008 Guidelines, in effect at time of sentencing, establish a higher base offense level for the offense of Criminal Sexual Abuse. The government argues that using the 2008 advisory Guidelines, which established a more onerous offense level than that in effect on the date of crime, would not violate the Ex Post Facto Clause under the new post-Booker advisory Guidelines regime.  The Ex Post Facto Clause “bars application of a law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.”  Johnson v. United States, 529 U.S. 694, 699 (2000) (internal citations and quotations omitted).

The Supreme Court has interpreted the Ex Post Facto Clause to bar retroactive application of a revised version of a state’s sentencing guidelines, Miller v. Florida, 482 U.S. 423 (1987), and this Court applied that decision to the federal Sentencing Guidelines, see United States v. Kussmaul, 987 F.2d 345, 351-52 (6th Cir. 1993).  The government argues that this legal precedent no longer applies because, post-Booker, the Sentencing Guidelines are advisory rather than mandatory.  Although this Court has not directly determined whether the now advisory Guidelines regime implicates Ex Post Facto concerns, there is some case law in support of holding that it does.  This Court has acknowledged that “[t]he presence of discretion does not displace the protections of the Ex Post Facto clause.”  Michael v. Ghee, 498 F.3d 372, 382 (6th Cir. 2007).  When evaluating the reasonableness of a sentence, the reviewing court must consider the applicable Guidelines range and failure to do so is “reversible error.”  See United States v. Kosinski, 480 F.3d 769, 779 (6th Cir. 2007). The Sentencing Guidelines are still relevant and are a starting point for determining a defendant’s sentence. Only when the Guidelines range is unable to meet the goals of the Sentencing Guidelines is a sentencing court expected to vary from the Guidelines sentence. 18 U.S.C. § 3553(a).  As a result, the advisory nature of Guidelines does not completely eliminate Ex Post Facto concerns.  Ironically, the government is presumably interested in having the 2008 Guidelines apply because it would impact Defendants’ sentence, which demonstrates the Ex Post Facto concerns that come into play when retroactively applying the 2008 Guidelines.  Accordingly, the district court’s determination is AFFIRMED.

I read the sentences in bold above as a formal holding by the Lanham panel that, in the Sixth Circuit, the Ex Post Facto Clause continues to limit/prevent the application of a more severe current (advisory) sentencing guideline if and when the defendant's crime was committed when the applicable guideline was less harsh.  But, as detailed in this prior post, a Fifth Circuit ruling earlier this year cited a 2006 Sixth Circuit ruling (United States v. Barton, 455 F.3d 649, 655 n.4 (6th Cir. 2006)) for the proposition that the Sixth Circuit did not think ex post facto concerns persisted after Booker.

Whatever might be the law now in the Sixth Circuit, I hope the Supreme Court get to this issue soon.  Indeed, I remain surprised that this issue has not been effective resolved (or even all that effectively litigated) nearly six full years after the guidelines became advisory.

A few related posts on post-Booker ex post issues (with ruling dates in parentheses):

August 24, 2010 at 12:17 PM | Permalink


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Ex post facto concerns is one of those murky areas in the sentencing arena, particularly in states with grid sentencing where a defendant's prior record of convictions can increase the potential sentence.

Here's the typical scenario. Def commits a crime on Jan 1 in county A and commits another crime on January 2 in county B. On the date of his first offense he has not been convicted of any other crimes. In NC under our grid if the crime is felonious larceny the highest sentence he could get for the first offense would be 8 months in prison.

But suppose county B's prosecutor works a little faster than county A's and he is tried and convicted of larceny in the second county before he goes to trial in the first county.

If def is then tried in A, and convicted, at the sentencing hearing he will have one prior conviction from an offense which happened after the first but was tried before the first one. Then, in that event, the def is in prior record level two, instead of one, and he could receive a maximum sentence of 10 months.

So, on the date of offense in county A the def is looking at 8 months as the max but on the date of sentencing the max goes up to 10 months. I always thought that the parameters of punishment for an offense were set as of the date of the offense. Not so in NC. Seems like an ex post facto problem to me because your punishment can go up for a crime after the date of the crime.

Just one more of those little bizarre, and in my opinion unconstitutional, wrinkles to grid sentencing.


Posted by: bruce cunningham | Aug 24, 2010 4:44:59 PM

I've always thought in the Federal system, that you couldn't use a newer guideline, to increase a defendants sentence...It should be universal, not just in the 6th circuit.. Thats the entire purpose of the guidelines, to limit the discretion of Judges, so sentences are consistant with the crime..

Posted by: Abe | Aug 24, 2010 4:51:32 PM


The same thing happens in federal court. Example: A defendant initially has no criminal record. Then Defendant commits a state crime carrying a sentence of 18 months. Then defendant commits fan unrelated ederal drug crime carrying 10-life. If the defendant is sentenced in state court first, defendant is not eligible for federal safety valve. So defendant does 10 years in federal prison instead of 6 years.

Posted by: k | Aug 24, 2010 9:26:51 PM

why doesn't that violate the ex post facto clause? seems to me a defendant's range of possible punishment is set by what punishment he faces at the time he commits the offense, not after some subsequent legal proceedings. It allows the state to manipulate sentences, I think in violation of the separation of powers clause.

The worst example of this is in the capital context. Suppose a def kills someone on Jan 1 and goes on the run. On January 30 he commits an armed robbery and is captured, and charged with murder and unrelated armed robbery. Suppose further there are no aggravators making the murder capital. But, the state decides to try the second case first in order to get a conviction of a violent offense, which the state then uses as a capital aggravator to get death.

So, what was a noncapital crime when committed becomes a capital crime when tried.


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