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):

• Seventh Circuit holds ex post facto no longer applicable to guideline changes after Booker (2006)
• DC Circuit produces crisp split on ex post issues after Booker (finally!!) (2008)
• Fourth Circuit rules that Ex Post Facto Clause still limits application of new advisory guidelines (2010)
• A notable district court opinion on the post-Booker ex post facto issue (2010)