by Mark D. Hosken,
Supervisory Assistant Federal Public Defender,
Western District of New York

The Ex Post Facto clause (U.S. Const. Art. I, §9) prohibits laws that increase the punishment for a crime after its commission. Garner v. Jones, 529 U.S. 244, 249 (2000). That protection is extended to the application of the United States Sentencing Guidelines. See U.S.S.G. §1B1.11(b)(1). Section 1B1.11 directs the application of an earlier guideline manual if application of a later manual would violate the Ex Post Facto clause. If an amended guideline section or enhancement substantially disadvantages the defendant, the application of the section or enhancement would violate the Ex Post Facto clause. Miller v. Florida, 482 U.S. 423, 432-433 (1987).
The Department of Justice is litigating a different position. The government maintains that Ex Post Facto protection is no longer relevant in determining which version of the Guidelines manual applies even if the amended section is more onerous to the defendant. The argument seemingly relies on Booker’s holding that the guidelines are advisory. Simply put, the contention is that since the guidelines are advisory, there can be no risk of increased punishment. For various reasons, the government’s position is flawed.
In Miller, the Supreme Court held that the application of a Florida sentencing scheme, similar to the U.S.S.G., violated the defendant’s Ex Post Facto protection. The decision addressed the central inquiry of the Ex Post Facto protection: was the defendant given fair notice of the punishment? The necessary analysis is whether the law applies to events occurring before its enactment and whether it substantially disadvantages the defendant. The Florida sentencing scheme set a sentencing range of 3 1/2 years to 4 1/2 years at the time the defendant committed his offense. Later changes increased the range to 5 1/2 years to 7 years when the defendant was sentenced. This substantially disadvantaged the defendant as it made “more onerous the punishment for (conduct) committed before its enactment.” Id at 435. As a result, the Ex Post Facto clause was violated.
A recent example demonstrates the continued viability of Ex Post Facto protection. A defendant is convicted of defrauding the United States (18 U.S.C. § 641) by securing federal FEMA funds by falsely claiming he resided in New Orleans during the Hurricane Katrina catastrophe. The defendant’s criminal conduct was complete in September 2005.

Congress decided to increase the punishment for future fraud-related offenses similar to those occasioned by the Katrina disaster. The lawmakers enacted 18 U.S.C. § 1040 pursuant to Pub.L. 110-179. This legislation created a 30 year felony (Fraud in Connection with a Major Disaster or Emergency Benefits) instead of the 10 year maximum for 18 U.S.C. § 641. The effective date for the new crime was January 7, 2008. This was 27 months after the criminal conduct was completed in our example. The Sentencing Commission created an enhancement [2B1.1(b)(11)] to implement the directives of the new statute. This enhancement if applied to the defendant’s completed conduct would result in a doubling of the offense level from 6 to 12. The amended enhancement became effective on November 1, 2008. This was 37 months after the criminal conduct was completed in our example.
U.S.S.G. § 1B1.11(a) directs the use of the guideline manual in effect on the date of sentencing. Such application is modified by subsection (b)(1). This caveat requires the application of the earlier manual (date of offense) if the later edition violates the Ex Post Facto clause. Thus, the proper U.S.S.G. manual is the earlier one in our example.
The government argues the sentencing court need not use the earlier - and more favorable to the defendant - guideline manual. Such claim ignores the Supreme Court’s direction that the Guidelines remain the starting point and the initial benchmark in every sentencing proceeding. Gall v. United States, 552 U.S. 38, 49 (2007). Numerous courts rejected the government’s claim and applied the Ex Post Facto protection to post-Booker sentencings. See United States v. Turner, 548 F.3d 1094, 1099-1100 (D.C. Cir. 2008) (using a later version of the guidelines created a substantial risk that the defendant’s sentence was more severe, thus resulting in a violation of the Ex Post Facto Clause); United States v. Lanham, __F3d__, 2010 WL 3305937, *12 (6th Cir. Aug.24, 2010) (“the advisory nature of Guidelines does not completely eliminate Ex Post Facto concerns.”); United States v. Lewis, 603 F.Supp.2d 874, 877 (E.D. Va. 2009) (the clear preponderance of reviewing courts seem to favor post-Booker application of the Ex Post Facto Clause to sentencing guidelines calculations); United States v. Doyle, 621 F.Supp.2d 345 (W.D. Va. 2009) (rejecting the use of the higher 2008 guidelines and instead applying the 2003 guidelines in effect at the time of the commission of the child exploitation offenses); United States v. Kladek, 651 F.Supp.2d 992 (D. Minn. 2009) (rejecting the use of the higher 2008 guidelines and instead applying the 2000 guidelines in effect at the time of the commission of the tax offenses); United States v. Sweeney, __F.Supp.2d__, 2010 WL 2222264, *4 (S.D.N.Y. June 3, 2010), (collecting cases and applying the 2003 guidelines in effect at the time of the conduct rather than the more onerous 2008 guidelines in effect at sentencing in a child exploitation case); United States v. Kilkenny, 493 F.3d 122, 127 (2d Cir. 2007) (holding that, the application of a particular version of the sentencing guidelines is retrospective, for purposes of the Ex Post Facto Clause, if the version went into effect after the last date of the offense of conviction); United States v. Johnson, 558 F.3d 193, 194 & n.1 (2d Cir. 2009) (per curiam) (explaining Kilkenny); and United States v. Gilmore, 599 F.3d 160, 166 (2d Cir. 2010) (at a minimum, in order to raise an Ex Post Facto concern, a law must apply to events occurring before its enactment).
The Second Circuit recently reaffirmed the Ex Post Facto principle in a post-Booker analysis. Though the reasoning was not determinative to the issue before the Court, the panel agreed the Ex Post Facto Clause applies: “Our holding continues to prevent the Sentencing Commission and Congress from imposing a heightened punishment following the commission of the criminal conduct triggering that punishment.” United States v. Kumar,___F.3d__, 2010 WL 3169270,*12 (2d Cir. Aug. 12, 2010). Judge Sack, in his dissenting opinion, agrees with the majority on this point:
“The majority and I begin on common ground. We first assume that the Ex Post Facto doctrine applies to the Sentencing Guidelines after the Supreme Court decided, in United States v. Booker, (citation omitted), that the guidelines are advisory. We then agree that [f]or a law to contravene the Ex Post Facto clause, two critical elements must be present: First, the law must be retrospective, that is, it must apply to events occurring before its enactment; and second, it must disadvantage the offender affected by it.”
Id at *25.
Recently, the Honorable David G. Larimer rejected the government’s argument that the application of a more severe guideline enhancement would not impact the Ex Post Facto protections. Judge Larimer recognized the higher guideline sought by the government would disadvantage the defendant. The Court decided the importance of the guidelines as a starting point in the sentencing process was enough to trigger the use of the earlier, less severe guideline manual. United States v. Lewis, Docket No. 10-CR-6060-001, WDNY, (decided Aug. 19, 2010).

The use of the later book in our example to apply the enhancement would violate the protections of the Ex Post Facto clause. The enhancement doubling the guideline range is the result of legislative action by Congress many months after the offender’s conduct was complete. The government seeks to retroactively apply the onerous enhancement to the defendant. If successful, that guideline enhancement would apply to events that ended before the legislative amendment. Moreover, such application would disadvantage the defendant by doubling his guideline range. Such application would be unconstitutional. The proper guideline to be applied in our example is the earlier manual. Contrary to the government’s contention, the protections of the Ex Post Facto clause remain for post-Booker sentencings.