Ex
Post Facto Case Analysis
The
opinion in this case is probably the most remarkable post-Booker decision yet,
in this circuit or any other.
The
first and foremost question people are asking is, “What is the Department
of Justice going to do?” And that would be the Attorney General, not the
U.S. Attorney in Indianapolis.
As
noted, the government conceded error in this case, albeit not out of generosity.
Before
concluding its opinion, the court observed, “As for the confession of error
that the government makes in its brief, the assistant U.S. attorney who argued
the appeal acknowledged that the government is waging a rearguard action against
Booker and wants the guidelines to bind as tightly as possible because it believes
that judges are more likely to use their Booker-conferred discretion to sentence
below than above the guidelines sentencing ranges. This produces the paradox that
while the ex post facto clause is intended to protect criminal defendants, it
is here invoked by the government in the hope that it will lead to longer sentences.
It is not an attractive argument.”
Although
this is the first post-Booker case in the appellate courts to consider the ex
post facto clause with relation to increases in the guidelines, all previous cases
assume the opposite (the Seventh Circuit itself assumed the opposite of its holding
in the case at bar, in U.S. v. Baretz, 411 F.3d 867, 873-77 (7th Cir. 2005)).
In
addition, as the court freely acknowledges, the formula for determining whether
a law violates the ex post facto clause, “interpreted literally,” does
apply to advisory guidelines.
Thus,
it would be remarkable if none of the other circuits disagrees, causing a split
in the circuits that must be addressed by the Supreme Court. However, it could
take a long time for a split in the circuits to develop, depending on what the
DOJ does.
For
an opinion to even be issued by another circuit, there would have to be the same
strange confluence of events as in this case: first, a district court must apply
the recent, harsher guideline, notwithstanding binding precedent that it should
apply the earlier version; then, either the DOJ must defend that decision on appeal;
or if the DOJ concedes error, as it did here, the court of appeals must take it
upon itself to raise the issue, rather than issuing a summary reversal.
This
case should go to the Supreme Court (and be given expedited treatment), resolving
the issue without waiting for a split to develop. As noted, however, the DOJ and
the defendant have been on the same side. So, the court may need to appoint counsel
to defend the Seventh Circuit’s position, as it did when the continued validity
of Miranda in federal courts was at issue in Dickerson v. U.S., 530 U.S. 428,
120 S.Ct. 2326 (2000), and the court appointed now-district judge Paul G. Cassell
to argue that Miranda was no longer valid law.
In
the interim, the decision is a great boon to defendants for the statements concerning
the reasonableness of non-guideline sentences (and a bane to the DOJ, which wants
the guidelines treated as mandatory as is constitutionally permissible).
The
court wrote, “the judge is not required — or indeed permitted, U.S.
v. Brown, 450 F.3d 76, 81-82 (1st Cir.2006) — to ‘presume’ that
a sentence within the guidelines range is the correct sentence and if he wants
to depart give a reason why it’s not correct. All he has to do is consider
the guidelines and make sure that the sentence he gives is within the statutory
range and consistent with the sentencing factors listed in 18 U.S.C. 3553(a).
His choice of sentence, whether inside our outside the guideline range, is discretionary
and subject therefore to only light appellate review. The applicable guideline
nudges him toward the sentencing range, but his freedom to impose a reasonable
sentence outside the range is unfettered (emphasis added)(cites omitted).”
These
statements can, and will, be cited by defendants very frequently, to argue in
favor of below-guideline sentences, and to defend them on appeal.
The decision
is also remarkable for its discussion of whether a guideline sentence is presumptively
reasonable.
In
U.S. v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005), the court held that a sentence
within the guidelines range is presumptively reasonable.
In
light of this decision, that holding is modified as follows: when an appellate
court reviews a sentence within the guidelines, it is presumptively reasonable;
but the district court, in actually imposing the sentence, cannot presume that
a sentence within the guidelines is reasonable. Like the ex post facto holding,
that distinction is likely to create a split in the circuits that the U.S. Supreme
Court must resolve.
In
short, an issue involving a relatively insignificant three months — the difference
between a 30- and a 27-month sentence — that the parties probably expected
to be settled with a summary reversal, may result in the first major post-Booker
case that the U.S. Supreme Court considers.
-
David Ziemer
Click
here for Main Story.
David
Ziemer can be reached by email.
