DOJ Policy on One Book Rule and Ex Post Facto

The Sentencing Guidelines provide that the Guidelines to apply are the Guidelines "in effect on the date the defendant is sentenced." The courts held that applying the current Guidelines raised ex post facto law considerations where the Guidelines in effect at the time of the crime were more lenient than the ones in effect at the time of sentencing. A significant factor in the landscape for that holding was that the Guidelines were mandatory. After Booker, however, the Guidelines are not mandatory. Nevertheless, although not addressing the issue, most courts just carryforward without comment the pre-Booker requirement that the current Guidelines not be used where they produce a more stringent now-advisory sentence.

Indeed, in an appeal where the current Guideline was applied and was more stringent, the Government even sought to confess that the sentencing court erred in applying the current Guidelines. The irrepressible Judge Posner, writing for the Seventh Circuit panel, rejected the Government's confession of error and held sua sponte that, under the post-Booker regime making the Guidelines advisory only, the ex post facto analysis no longer applies and therefore the current Guidelines are the ones to apply. United States v. Demaree, 459 F.3d 791 (7th Cir.), cert. denied, 127 S. Ct. 3055 (2007). Other courts have disagreed with Judge Posner. E.g., United States v. Turner, 548 F.3d 1094, 1098-1100 (D.C. Cir. 2008).

I learned today in reviewing the "Government's Sentencing Submission" in United States v. Larson (SD NY No. S1 05 Cr. 888 (LAK)), filed 3/26/09, that the Government's position is that Judge Posner's analysis is correct. The pertinent parts of that submission may be viewed here. It now appears that, because of this split, unless resolved soon by the Circuits (unlikely), the Supreme Court may well jump in again to further enlighten on the ramifications of the Booker decision.

In the meantime, I suppose there will be a temptation for reverse-averse sentencing judges to do both sets of Guidelines calculations (current and earlier), respectfully consider both in applying the 18 USC Section 3553(a)sentencing factors, and pronounce the sentence with a statement that he or she would have imposed the same sentence regardless of which advisory Guidelines applied. That may bullet-proof an appeal on this issue.