Booker Case Analysis

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Even though Paulus lost his Ex Post Facto Clause argument, this decision is nevertheless a boon to some defendants.

A comparison of the reasoning to that in U.S. v. Jamison, 416 F.3d 538, No. 05-1045 (7th Cir., July 20, 2005) — another ex post facto case from the Seventh Circuit — demonstrates why.

In Jamison, the defendant pleaded guilty to distributing cocaine base, admitting that his total offense conduct was at least 2 grams, but less than 3 grams, of cocaine base.

The probation officer concluded he was responsible for 3.8 grams, including cocaine involved in a transaction which Jamison denied.

At the sentencing, which occurred after Blakely had been decided, U.S. District Court Judge John C. Shabaz found Jamison responsible. Treating the guidelines as advisory, he imposed a sentence of 38 months. Shabaz also imposed an alternative sentence, in the event the guidelines were held to be constitutional, also of 38 months.

The Seventh Circuit affirmed, rejecting an ex post facto argument by Jamison.

The entirety of the Seventh Circuit’s reasoning is as follows: "Jamison knew that he was committing a crime at the time he distributed cocaine base. The new judicial interpretation of the law brought about by Booker affects his punishment, not whether his conduct was innocent. Distributing cocaine base was not made a crime by the Court’s decision in Booker. Jamison also had fair warning that distributing cocaine base was punishable by a prison term of up to twenty years, as spelled out in the United States Code. Jamison had sufficient warning of the possible consequences of his actions, and his sentence does not run afoul of any of the core concepts discussed in [Rogers v. Tennessee, 532 U.S. 451 (2001)]. We therefore join the Fifth and Eleventh Circuits in rejecting an ex post facto claim based on the remedial holding in Booker (cites omitted)."

This reasoning allows for no ex post facto argument at all based on Booker, when the crime was committed before the decision in Blakely. A sentencing court can say that the guidelines are advisory, and impose a sentence anywhere up to the maximum, without running afoul of the clause.

The decision in Paulus’ case, however, does allow for a valid ex post facto argument in some cases.

The court wrote, "From 1998 to 2000, the time period in which Paulus engaged in the criminal conduct at issue, there was little doubt about the constitutionality of the mandatory guideline sentencing regime. So the question as to whether Paulus’s sentence violated principles of due process boils down to whether he could have been sentenced to 58 months under that regime."

The court then explained, how, under the mandatory guideline system, a sentencing court could have made the findings that supported the enhancement and the 58 month sentence.

The court concluded, "the question of whether Paulus had ‘fair notice’ of the punishment his conduct would merit must necessarily be focused on the state of sentencing law from 1998-2000, the time Paulus’s crimes were committed. At that time, the departure could have been made based on judge-found facts under the preponderance of the evidence standard."

Suppose, however, that the court had imposed a sentence far in excess of what could be imposed under mandatory guidelines. Suppose no "judge-found facts" could plausibly have supported the sentence that the court imposed were the guidelines mandatory.

Applying Jamison, the ex post facto argument would fail — any sentence up to the maximum satisfies due process. Applying the decision in Paulus, the argument would succeed. If a mandatory guideline sentence, even drawing any disputed facts and inferences in favor of the government, would have permitted a sentence of, at most, 50 months, then a sentence of 51 months would not be consistent with the court’s reasoning in Paulus’ case.

If the proper focus is on "the state of sentencing law [at the time of the crime], rather than the statutory maximum, then the defendant’s sentence would be unlawful.

Other language in Paulus also supports defendants in such cases. The court wrote, "In June 2004, the Supreme Court clarified that the ‘prescribed statutory maximum’ that must not be exceeded without satisfaction of the criminal burden of proof is actually the presumptive maximum under the guidelines, ‘not the maximum sentence a judge may impose after finding additional facts.’"

This reasoning, used in the context of the ex post facto clause, dictates that the maximum sentence that may not be exceeded is the maximum that could have been imposed under mandatory guidelines, not the statutory maximum, as the court held in Jamison.

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It is noteworthy that the court in Paulus’ case made no reference to the Jamison case; it wrote the opinion as though the issue were one of first impression in this circuit.

The court may never need to resolve the conflict. If the court only considers cases in which the sentences are ones that plausibly could have been justified under mandatory guidelines, the court may cite either Paulus or Jamison for a
uthority when denying an ex post facto argument, and it will make no difference.

However, the day the court gets a case in which the district court properly calculated the guidelines, determined that they are too low, and imposed a sentence greater than that which could have been imposed under a mandatory system, the court will have to either follow Jamison, or Paulus, but it will not be able to cite both for support.

En banc review should be requested in such a case, because of the intracircuit conflict in authority that the case creates.

– David Ziemer

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David Ziemer can be reached by email.