Ex Post Facto Case Analysis

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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.

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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

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David Ziemer can be reached by email.