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March 28, 2011

Eleventh Circuit weighs in on ex post facto issues after Booker

Though Booker has been the law of the federal sentencing land for more than six years now, the impact of the decision on ex post facto doctrines concerning guideline application remains unresolved in most circuits (and, it seems, under-litigated in most settings).  Today, the Eleventh Circuit weighs in on this issue in US v.  Wetherald, No. 09-11687 (11th Cir. March 28, 2011) (available here).  Here are passages from the opinion:

This court has yet to directly address the ex post facto implications of Booker on the Guidelines.... Nevertheless, while we have not addressed the question as presented in this case, we have affirmed the underlying principles that led to the application of the Ex Post Facto Clause in our pre-Booker opinions.

Our sister circuits have split on the impact of Booker in regards to the Ex Post Facto Clause.  The Seventh Circuit has taken the view that the Ex Post Facto Clause no longer poses a problem, as it applies “only to laws and regulations that bind rather than advise.” United States v. Demaree, 459 F.3d 791, 795 (7th Cir. 2006)...  The D.C. Circuit has squarely rejected this position, finding that the application of a harsher Guidelines range in place at sentencing presents a constitutional problem.  United States v. Turner, 548 F.3d 1094, 1099–1100 (D.C. Cir. 2008)....

Because it is consistent both with our interpretation of Supreme Court precedent and this circuit’s jurisprudence, we find the approach taken by the D.C. Circuit more compelling than that of the Seventh Circuit. It is true that the Guidelines are no longer mandatory, but neither are they without force.  The simple reality of sentencing is that a “sentencing judge, as a matter of process, will normally begin by considering the presentence report and its interpretation of the Guidelines.” Rita v. United States, 551 U.S. 338, 351, 127 S. Ct. 2456, 2465 (2007). As the D.C. Circuit noted, “Practically speaking, applicable Sentencing Guidelines provide a starting point or ‘anchor’ for judges and are likely to influence the sentences judges impose.” Turner, 548 F.3d at 1099.  This starting point serves to cabin the potential sentence that may be imposed, and the Supreme Court has recognized that the appeals courts may presume the reasonableness of a sentence that reflects the district court’s proper application of the Sentencing Guidelines. Rita, 551 U.S. at 347, 127 S. Ct. at 2462. We also have acknowledged that “ordinarily we would expect a sentence within the Guidelines range to be reasonable.” United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). Although we have declined to find that a sentence within the Guidelines range is reasonable per se, we have noted that the Guidelines remain “central to the sentencing process” and that “our ordinary expectation still has to be measured against the record, and the party who challenges the sentence bears the burden of establishing that the sentence is unreasonable in the light of both that record and the factors in section 3553(a).” Id. at 787, 788...

Thus, the application of the correct Guidelines range is of critical importance, and it cannot be said that the Ex Post Facto Clause is never implicated when a more recent, harsher, set of Guidelines is employed. But it is equally clear that we need not “invalidate every sentence imposed after a Guidelines range has been increased after the date of the offense.” Ortiz, 621 F.3d at 87.  Rather, we will look to the sentence as applied to determine whether the change created “‘a sufficient risk of increasing the measure of punishment attached to the covered crimes.’” Garner, 529 U.S. at 250, 120 S. Ct. at 1367 (quoting Cal. Dep’t of Corr. v. Morales, 514 U.S. 499, 509, 115 S. Ct. 1597, 1603 (1995)). This standard is consistent with our precedent.  As we said in Kapordelis, “While we have held that the district court must correctly calculate the Guidelines before imposing a sentence, we are not required to vacate a sentence if it is likely that, under the correctly calculated Guidelines, the district court would have imposed the same sentence.” 569 F.3d at 1314.  Therefore, we will only find an Ex Post Facto Clause violation when a district judge’s selection of a Guidelines range in effect at the time of sentencing rather than that at the time of the offense results in a substantial risk of harsher punishment.  This standard recognizes the ongoing importance of the Sentencing Guidelines while maintaining the district court’s broad discretion to consider relevant information in formulating an appropriate sentence.

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

March 28, 2011 at 04:14 PM | Permalink


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I think the issue is under-litigated because both defendants and the government usually agree that the D.C. and 11th Circuits are correct. Defendants, naturally, want to avoid a harsher guideline and so argue that ex post facto prevents its harsher application even after Booker. The government, as a general matter, wants the guideline to be as strong of an anchor as possible, which is what creates the ex post facto problem even after Booker.

Posted by: DEJ | Mar 28, 2011 4:57:32 PM

I agree with the Court's holding that the ex post facto clause continues to prevent application of a harsher guideline, even after Booker. However, I am troubled by its discussion of the law surrounding whether relief is warranted.

First, I'm assuming the issue was preserved by the Defendants in the district court. In fact, the district court stating that it was "going to agree with the Government" implies that the Defendants argued the opposite position. Second, this was a constitutional error, as the constitution's ex post facto clause was violated.

Under those two conditions (i.e. when a constitutional error is preserved) reversal is warranted unless the government proves it was harmless BRD. Maybe the government could have met that burden in this case, and I express no opinion on that issue. However, the panel seems to misstate the burden and the correct standard of review.

The panel says that it is not reversing because "Appellants have presented no evidence that these sentences were affected by the district court’s reference to the 2008 Guidelines, and their speculation that the judge might have departed even further had he employed the 2002 Guidelines is not sufficient to show a substantial risk of harsher punishment." Slip Op. at 15. The panel earlier complains that "they [Appellants] have failed to show a substantial risk that" prejudice occurred. Id. at 12-13. Instead of correctly placing the burden on the government to show harmlessness BRD, the court incorrectly places the burden on the Defendants "to show a substantial risk" of prejudice.

In sum, the panel shifts the burden of proving prejudice to the defendants and turns the standard of review on its head.

Posted by: DEJ | Mar 28, 2011 5:22:59 PM

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