Please ensure Javascript is enabled for purposes of website accessibility

Court issues landmark ex post facto decision

By: dmc-admin//August 16, 2006//

Court issues landmark ex post facto decision

By: dmc-admin//August 16, 2006//

Listen to this article

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.

Related Links

7th Circuit Court of Appeals

Related Article

Case Analysis

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.

Polls

Should Steven Avery be granted a new evidentiary hearing?

View Results

Loading ... Loading ...

Legal News

See All Legal News

WLJ People

Sea all WLJ People

Opinion Digests