Court
issues landmark ex post facto decision
By
David Ziemer
Wisconsin Law Journal
August
16, 2006
| What
the court held Case:
U.S. v. Demaree, No. 05-4213. Issue:
Does it violate the ex post facto clause to use the current longer sentence guideline
than the one in effect when the crimes were committed? Holding:
No. Because the guidelines are now only advisory, there is no ex post facto violation. |
Because
the federal sentencing guidelines are now only advisory, a change in the guidelines
that increases the guidelines range is no longer an ex post facto law, and can
be applied to a defendant who committed his crime before the change.
The
landmark holding by the Seventh Circuit on Aug. 11 is the first in the country.
Rebecca
S. Demaree pleaded guilty in Indiana federal court to wire fraud and tax offenses
arising from her embezzlement of almost $300,000. Under the 2000 version of the
guidelines — in force when she committed the crimes — the guideline
range was 18 to 24 months.
Under
the 2004 version — in effect at the time of sentencing — the guideline
range is 27 to 33 months.
The
sentencing judge applied the 2004 version, and sentenced her to 30 months. However,
he added that, if the 2000 guidelines were applicable to her case instead, he
would have sentenced her to 27 months (still above the guidelines range).
Demaree
appealed on ex post facto grounds, and the government conceded error, but the
Seventh Circuit affirmed, nevertheless, in a decision by Judge Richard A. Posner.
In
Miller v. Florida, 482 U.S. 423 (1986), the Supreme Court held that the State
of Florida’s sentencing guidelines, which are similar to the federal guidelines,
could not be imposed retroactively.
In
light of Miller, all the courts of appeal, including the Seventh Circuit, held
that the principle applies to the federal guidelines, as well. U.S. v. Seacott,
15 F.3d 1380, 1384-86 (7th Cir. 1994); U. S. v. Schnell, 982 F.2d 216, 218 (7th
Cir. 1992).
The
court acknowledged that the rest of the circuits (including itself), have continued
to apply Miller, since the decision in U.S. v. Booker, 543 U.S. 220 (2005), but
noted that they have not considered the potential impact of Booker on the rule.
In
U.S. v. Roche, 415 F.3d 614, 619 (7th Cir. 2005), however, the Seventh Circuit
issued dicta suggesting that the foundation of Seacott has been removed by Booker.
Addressing the issue directly in the case at bar, the court held that Seacott
is no longer relevant law.
The
court stated the test for an ex post facto law as follows: “whether it places
the defendant at a disadvantage or substantial disadvantage compared to the law
as it stood when he committed the crime of which he has been convicted, changed
the definition of the crime or increased the maximum penalty for it, or imposed
a significant risk of enhanced punishment.”
The
court acknowledged that this test, applied literally, applies to voluntary sentencing
guidelines, as well as mandatory guidelines, “for official guidelines even
if purely advisory are bound to influence judges’ sentencing decisions.”
Nevertheless,
the court concluded that it does not violate the ex post facto clause to use the
harsher 2004 guidelines to crimes committed in 2000.
The court
reasoned, “The judge is not required — or indeed permitted —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 or 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 (cites omitted).”
The
court also found that any rule that adverse guideline changes cannot be retroactive
would have “in the long run a purely semantic effect.”
The
court explained, “Instead of purporting to apply the new guideline, the judge
who wanted to give a sentence based on it would say that in picking a sentence
consistent with section 3553(a) he had used the information embodied in the new
guideline. A judge who said he was persuaded by the insight that informed the
new guideline to give a sentence within the range established by it could not
be thought to be acting unreasonably.”
Accordingly,
the court held that the ex post facto clause applies only to laws and regulations
that bind rather than advise, and affirmed.
Click
here for Case Analysis.
David
Ziemer can be reached by email.
