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Table of Contents

110 – Guidelines Sentencing, Generally

110 – Guidelines Sentencing, Generally
  • 115 Rule 35(a) or (c) Motion to Correct Sentence (for Rule 35(b), see §711)
  • 120 Constitutional Issues, Generally (including Apprendi)
  • 145 Statutory Challenges To Guidelines

Back to main table of contents

§130 Ex Post Facto/Retroactivity, Generally

Supreme Court
First Circuit
Second Circuit
Third Circuit
Fourth Circuit
Fifth Circuit
Sixth Circuit
Seventh Circuit
Eighth Circuit
Ninth Circuit
Tenth Circuit
Eleventh Circuit
D.C. Circuit
Miscellaneous

Supreme Court declines to decide what is a “stipulation,” noting that Commission has power to amend the guide­lines retroactively. (130) The Supreme Court de­clined to resolve the con­flict in the circuits over whether the defendant’s mere assent to a set of facts can constitute a “stipulation” under § 1B1.2(a), noting that the Sen­tencing Commis­sion has “already under­taken a proceeding that will eliminate circuit conflict” on that question.  The court noted that Congress has granted the Commission the unusual explicit power to de­cide whether and to what extent its amend­ments re­ducing sentences will be given retroactive effect.  28 U.S.C. § 994(u).  This power has been im­plemented in guideline § 1B1.10, which sets forth the amend­ments that justify sentence reduc­tion.  Braxton v. U.S., 500 U.S. 344, 111 S.Ct. 1854 (1991).

 

Supreme Court holds that sentencing under guidelines that were increased after crime was committed violated the ex post facto clause. (130) When the petitioner com­mitted his crime, Flor­ida’s determinate sentencing guide­lines called for a presumptive sen­tence of 3-1/2 to 4-1/2 years.  By the time petitioner was sentenced, the guide­lines had been revised to from 5-1/2 to 7 years and peti­tioner was sen­tenced to 7 years.  In a unanimous opinion written by Justice O’Connor, the Supreme Court held that the trial court’s reliance on the new guidelines vi­olated the ex post facto clause.  The new guidelines were not a mere “pro­cedural” change, and it did not mat­ter that even un­der the old guidelines, the court could have im­posed a 7 year sentence upon giving “clear and convincing” rea­sons for do­ing so. Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446 (1987).

 

1st Circuit says use of prior conviction to enhance sentence was not ex post facto. (130) Guideline section 2L1.2(b)(2) and 8 U.S.C. section 1326(b) provide for a sentence enhancement if the defendant previously was deported after conviction for an aggravated felony.  Defendant argued that using his prior conviction to enhance violated the ex post facto clause because the conviction occurred before the effective date of these provisions.  The 1st Circuit found no error.  Defendant was being punished for the crime of unlawful reentry, which occurred after the effective date of these provisions.  The fact that his prior convictions preceded the enactment of the enhancement provisions did not make the enhancement invalid.  Moreover, the fact that the immigration officer may not have advised defendant of the aggravated felony enhancement did not mean defendant did not have fair notice of it.  At the time of the unlawful reentry, section 1326(b) plainly provided for the enhancement.  U.S. v. Forbes, 16 F.3d 1294 (1st Cir. 1994).

 

1st Circuit affirms upward departure where guidelines did not reflect increased penalties under statute. (130) Defendant was convicted of being a deported alien unlaw­fully in the United States.  The statute had recently been amended to increase the maximum penalty from two to five years.  However, the guide­lines lagged be­hind, not incorporating these changes until the Novem­ber 1989 amendments.  Defendant was sentenced under the 1987 ver­sion of the guidelines.  The 1st Circuit up­held the district court’s departure based on the lag time between the statutory amendments and the correspond­ing update of the guidelines, finding that the Sentencing Commission could not have con­sidered the increased penalties when formulating the 1987 guidelines.  The 1st Circuit also found it was proper for the district court to determine the scope of the departure using the amended version of the guidelines as a guide.  “In the relatively rare situation pre­sented here, where the defendant committed an offense after the applicable statute was amended but before the corresponding guide­line had been revised to reflect the change, re­sort to the eventual guideline revision for guid­ance appears to be a sensible, fair-minded ap­proach.”  U.S. v. Aymelek, 926 F.2d 64 (1st Cir. 1991).

 

2nd Circuit holds effective date of 1987 sen­tencing law has no bearing on effective date of guidelines. (130) De­fendant appealed his sen­tence of three con­current five year terms claiming that the Sen­tencing Reform Act of 1984 was not intended to apply to offenses committed before Decem­ber 7, 1987, the ef­fective date of the Sen­tencing Act of 1987.  Given the 2nd Circuit’s prior hold­ing that the Sentencing Re­form Act of 1984 is ef­fective Nov. 1, 1987 and applies to all offenses com­mitted after that date, the ef­fective date of the December 7, 1987, Act has no relevance here.  Thus the 1984 Sentencing Re­form Act was ap­plicable.  In any event, the defendant would have received the same sentence under the mini­mum mandatory provisions pun­ishing im­portation of drugs.  The sentence was there­fore proper.  U.S. v. Charleus, 871 F.2d 265 (2nd Cir. 1989).

 

2nd Circuit rules that guidelines do not apply to of­fenses committed prior to Nov. 1, 1987. (130) Two de­fendants were convicted of vari­ous charges stemming from an armored car robbery in 1983.  Two years later, they were granted reductions in their sentences due to their cooperation in assisting the government in appre­hending their accom­plices.  In Novem­ber 1987, they moved for a further reduction under 18 U.S.C. § 3582(c)(2), which pro­vides for reduction of guideline sentences if the commission subsequently downgrades the range.  The 2nd Circuit held that relief under this section was not available, because the of­fense occurred prior to Nov­em­ber 1, 1987.  The appropriate source of relief for pre-Act offenders is the Parole Commission.  U.S. v. Ar­gitakos, 862 F.2d 423 (2nd Cir. 1988).

 

3rd Circuit holds enhancing sentence based on juvenile record does not violate ex post facto clause. (130) De­fendant argued that guideline § 4A1.2(d)(2) requir­ing consid­eration of juvenile delinquency adjudi­cations at sen­tencing, violated the ex post facto clause.  The 3rd Circuit disagreed, noting that defen­dant was sentenced for criminal behavior that occurred after the guidelines’ effective date and not for defendants’ juve­nile conduct.  Thus there was no ex post facto violation.  The fact that the sentencing guidelines became applica­ble after defendant was adjudicated a juvenile delinquent was “immaterial to ex post facto analysis.”  U.S. v. Bu­caro, 898 F.2d 368 (3rd Cir. 1990).

 

4th Circuit finds that enhancement based on amount of money laundered does not violate ex post facto clause. (130) Defendant’s base level offense for money laun­dering was in­creased based on the large amount of money laundered.  Since defendant accumulated the money prior to the effective date of the guide­lines, de­fendant argued that an enhancement of his base level offense based upon the large amount of money laun­dered violated the ex post facto clause.  The 4th Circuit rejected this argument, noting that even though the il­legal proceeds were accumulated prior to the effec­tive date of the guidelines, every element of the money laun­dering offense took place after such effective date.  U.S. v. Porter, 909 F.2d 789 (4th Cir. 1990).

 

4th Circuit holds that sentencing guidelines do not ap­ply to offenses committed before ef­fective date of guide­lines. (130) Defendant pled guilty to eight counts of mail and wire fraud, five counts of which occurred prior to the effective date of the federal sentencing guide­lines.  The 4th Circuit held that the sen­tencing guide­lines did not apply to those counts which occurred prior to the effective date.  U.S. v. Polk, 905 F.2d 54 (4th Cir. 1990).

 

4th Circuit upholds offense level on conspir­acy that be­gan before effective date of guide­lines. (130) Defendant en­gaged in a conspiracy that began before November 1, 1987, the ef­fective date of the guidelines and continued past that date.  At sentencing, the judge con­sidered ac­tivity before November 1, 1987 in setting the base of­fense level.  The 8th Circuit rejected defendant’s con­tention that this vio­lated the ex post facto clause.  “Conspiracy is a continuing offense, and each conspira­tor is charged with participation for the life of the con­spiracy.  In this case, the conspiracy contin­ued after the effective date of the guidelines, and thus the guidelines are applicable in this case.”  U.S. v. Meitinger, 901 F.2d 27 (4th Cir. 1990).

 

5th Circuit affirms cross-reference to of­fense level for pre-guidelines of­fense. (130) Defendants were convicted of accepting a bribe in connection with the sentencing of a drug conspirator.  Because the bribe was for the purpose of facilitating another offense, under the 1990 version of guideline section 2C1.1 and section 2X3.1, defendant’s offense level was based on the offense level for that other criminal offense, the drug conspiracy.  The 5th Circuit af­firmed that the cross-refer­ence to the drug of­fense was proper, even though the drug offense was com­mitted prior to the effec­tive date of the guidelines.  Pre-guide­lines conduct may be considered in ar­riving at the guideline offense level.  All of de­fendant’s con­duct occurred after the guide­lines were in place, so there were no ex post facto concerns.  U.S. v. Collins, 972 F.2d 1385 (5th Cir. 1992).

 

5th Circuit holds that pre-guidelines offender has no right to be sentenced under guidelines. (130)  The 5th Circuit reaffirmed prior hold­ings that a defendant who commits crimes prior to Nov. 1, 1987 has no right to be sen­tenced un­der the guidelines under the terms of the statute, the due process clause or the equal protection clause.  U.S. v. King,  895 F.2d 205 (5th Cir. 1990).

 

5th Circuit holds that pre-Act offender is not entitled to receive guideline sentence. (130) A defendant who pled guilty to mail fraud in 1986 appealed his sentence, claim­ing that he was entitled to the lower sentence range he would have received had the guidelines been effect at the time.  The 5th Circuit rejected his claim, stating in the case of offenders who commit crimes before November 1, 1987, the Sentenc­ing Reform Act’s goal of uniformity in sen­tencing could be achieved through re­sort to the Pa­role system.  U.S. v. Watson, 868 F.2d 157 (5th Cir. 1989).

 

5th Circuit rules that the guidelines do not apply to pre-Act offend­ers because this would raise ex post facto problems. (130) The Fifth Circuit held that a defendant who commits an of­fense prior to November 1, 1987 is not enti­tled to a guideline sentence.  Making the guide­lines applicable only to offenses commit­ted after Nov. 1, 1987 reflects the principle that culpability is mea­sured by the law in effect at the time of the of­fense.  It also elimi­nates the possi­bility of ex post facto claims.  U.S. v. Haines, 855 F.2d 199 (5th Cir. 1988).

 

6th Circuit rules that defendants waived ex post facto chal­lenge by failing to raise it below. (130) De­fendants were charged with a conspiracy and continuing criminal en­terprise which ended October 11, 1988.  Ef­fective October 15, 1988, the guidelines were amended to increase the base offense level for a continuing criminal enterprise from 32 to 36.  Defendants’ plea agreements and presen­tence reports reflected a base of­fense level of 36, and the district court sentenced them ac­cordingly.  The 6th Circuit ruled that de­fendants had waived their ex post facto chal­lenge to their sentence by failing to raise the issue below.  The dis­trict court’s fail­ure to address the asserted misapplication of the guide­lines was not “plain error” because both sides agreed at sentencing that the October 1988 guidelines were appli­cable.  Judge Jones dissented, believing that defen­dants could not be bound by an unlawful sentence be­cause of a plea agree­ment.  U.S. v. Nagi, 947 F.2d 211 (6th Cir.).

 

6th Circuit states guidelines only apply to of­fenses commit­ted after November 1, 1987. (130) A car thief who drove a stolen car across state lines in October of 1986 argued that the guidelines should apply to offenses com­mitted between the date of their enactment and the ef­fective date.  The 6th Circuit rejected his challenge, holding that the lack of a retroactiv­ity clause in the Sen­tence Reform Act and the clear Congressional intent as to their effective date made his ar­gument meritless.  U.S. v. Newman, 889 F.2d 88 (6th Cir. 1989).

 

6th Circuit holds that pre-guidelines conduct may be used to enhance the of­fense level of post-guidelines con­duct. (130) The 6th Cir­cuit held that there is no ex post facto violation when a court considers drug traf­ficking con­duct which occurred prior to the effective date of the guidelines.  Such conduct may be used to increase the offense level for a conviction which results from post-guideline conduct.  The defendant is not being punished for the pre-guide­lines conduct; rather the pre-guide­lines conduct is being used to enhance the sentence for post-guideline conduct.  To hold otherwise would “cripple the use of the guide­lines to bring conformity to punishment for like criminal conduct.”  U.S. v. Ykema, 887 F.2d 697 (6th Cir. 1989).

 

7th Circuit affirms involvement in prior drug conspiracies as grounds for upward criminal history departure. (130) Defendant was con­victed of two drug charges.  Although defen­dant fell with criminal history category I, the district court determined that defendant had been involved in five separate conspiracies, and departed upward to crimi­nal history category III.  The 7th Circuit rejected defendant’s claim this departure violated the ex post facto clause, even though the evidence presented at his sentencing hearing pre­dated the effective date of the guidelines.  Defendant was not being punished for his past conspiracies, but rather for the two counts for which he was convicted.  Although defendant received a stiffer penalty for his current crimes, his 450-month sentence was within the statutory maximum for both of the offenses.  U.S. v. Mettler, 938 F.2d 764 (7th Cir. 1991).

 

7th Circuit finds post-sentence reduction in guidelines not applicable to pre-guidelines of­fenders. (130) The Seventh Circuit held that the guidelines have no appli­ca­tion to a pre-Act offender who would have received a low­er sentence under the guidelines.  This is so, de­spite language in the guidelines calling for re­duction of sen­tence “in cases where the guide­lines are modified after sentence has been im­posed.”  U.S. v. Stewart, 865 F.2d 115 (7th Cir. 1988).

 

7th Circuit holds that guide­lines may be used for advi­sory purposes when sen­tencing pre-guidelines offend­ers. (130) In rejecting the defendant’s ex post facto challenge, the 7th Circuit held that the traditional wide discre­tion enjoyed by sentencing courts allows advi­sory consid­eration of the guidelines.  U.S. v. Vega, 860 F.2d 779 (7th Cir. 1988).

 

7th Circuit upholds district court’s advisory reliance upon the guidelines in sentencing a pre-Act offender. (130) The 7th Seventh Cir­cuit held that the sentencing court’s advisory consulta­tion of the draft guidelines was permis­sible when the judge articulated the factors upon which the sentence was based.  The fact that the defen­dant’s sentence was below the sug­gested range sup­ported the government’s ar­gument that there was no im­proper re­liance. U.S. v. Bullock, 857 F.2d 367 (7th Cir. 1988), abrogation on other grounds recognized by U.S. v. Ross, 77 F.3d 1525 (7th Cir. 1996).

 

8th Circuit holds that Chapter 7 policy statement is not a law within meaning of ex post facto clause. (130) Defendant ar­gued that his sentence on revocation of his supervised release violated the Ex Post Facto Clause because the court relied on policy statement 7B1.3(d), which was not in effect at the time defendant committed the underlying offense.  The 8th Circuit rejected this argu­ment, holding that the policy statement was not a “law” within the meaning of the Ex Post Facto Clause.  Although the guidelines are laws, and the guidelines, accompanying in­terpretive commentary and some policy statements are binding on the court, Chapter 7 policy statements are “a different breed.”  A sentencing court is only required to “consider” Chapter 7 policy statements.  Be­ing merely advisory, a Chapter 7 policy statement is not a law within the meaning of the Ex Post Facto Clause.  Hence, the court’s consideration of a Chapter 7 policy statement that was amended after defendant’s initial sentencing does not implicate the Ex Post Facto Clause.  U.S. v. Levi, 2 F.3d 842 (8th Cir. 1993).

 

8th Circuit rules sentence on revocation of proba­tion must be under guidelines in ef­fect at time of original sentencing. (130) The district court revoked defendant’s proba­tion and sentenced him under the guidelines then in effect, ap­plying policy statements con­tained in chapter seven of the sentencing guidelines that govern sentencing following pro­bation revocation.  The 8th Circuit re­manded for resentenc­ing, holding that upon probation revocation, the district court must sen­tence defendant under the statutes and guidelines that applied when defendant was originally sentenced.  U.S. v. Williams, 943 F.2d 896 (8th Cir. 1991).

 

9th Circuit rejects ex post facto claim in re-entry into U.S. after conviction of aggravated felony. (130) Defendant was convicted of being an alien in the U.S. after he had been deported following conviction of an aggravated felony, in violation of 8 U.S.C. § 1326(b)(2).  On appeal, he argued that his conviction violated the ex post facto clause because, at the time of his predicate 1985 felony, his crime was not defined as an aggravated felony. The 9th Circuit rejected the argument, ruling that for purposes of analyzing repeat offender statutes and statutes increasing penalties for future crimes based on past crimes, the relevant “offense” is the current crime, not the predicate crime.  Thus, defendant’s reentry into the U.S. was a new offense for due process purposes and also for ex post facto purposes.  U.S. v. Arzate-Nunez, 18 F.3d 730 (9th Cir. 1994).

 

9th Circuit says pre-guideline tax loss can be con­sidered if it is “relevant conduct.” (130) De­fendant was convicted of tax evasion for the years 1985 through 1989.  In calculating the offense level under §2T1.1, the district court took into account the tax loss from the 1987-1989 convictions and ruled that inclusion of the pre-guidelines conduct would violate the ex post facto clause.  The government ap­pealed and the 9th Circuit reversed.  The guidelines were in effect when defendant evaded his 1987-1989 federal income taxes and thus the punishment for post-guidelines conduct was not imposed retroac­tively.  The court joined numerous other circuits which have explicitly held that an increase of a sen­tence for post-guideline offenses based on pre-guide­line “relevant conduct” does not violate the ex post facto clause.  The case was remanded for the district court to determine whether the pre-guideline convic­tions were part of the same course of conduct or common scheme or plan as the post-guideline con­victions.  U.S. v. Kienenberger, 13 F.3d 1354 (9th Cir. 1994).

 

9th Circuit says applying amended super­vised re­lease provision violated ex post facto clause. (130) In December 1988, after defendant com­mitted his underlying offense, Congress amended the supervised release re­vocation statute to require a minimum revo­cation term of one-third of the original term of supervised release for those who violate su­pervised release by possessing controlled substances.  When defendant violated the terms of his supervised release by possessing a controlled substance, the dis­trict court ap­plied the amendment.  On appeal, the 9th Circuit reversed, finding the ex post facto clause was violated even though the defen­dant violated his supervised release after the amendment was adopted.  A term of super­vised release is virtually identical to the old parole system and arises out of a defendant’s original crimes.  U.S. v. Paskow, 11 F.3d 873 (9th Cir. 1993).

 

9th Circuit requires resentencing under earlier guidelines where conspiracy reversed on appeal. (130) In sentencing the defendants, the district court increased their offense levels pursuant to a November 1, 1991, amendment to the guidelines.  On appeal, the 9th Circuit reversed their convictions on the conspiracy count.  Since they were not charged with any substantive crimes occurring after November 1, 1991, the court held that on remand the district court should apply the 1990 version of the guidelines.  U.S. v. Castaneda, 9 F.3d 761 (9th Cir. 1994).

 

9th Circuit finds no ex post facto violation in applying supervised release policy statement. (130) Defendant was placed on supervised release in 1988.  While he was on supervised release, U.S.S.G. §7B1.3 was amended to provide that any sentence on re­vocation of supervised release should be con­secutive to any other sentence the defendant is serving.  Thereafter, defendant violated his supervised release and he was sentenced to a consecutive sentence upon revocation.  The 9th Circuit rejected his argument that this vi­olated the ex post facto clause, noting that the offense for which the supervised release was revoked occurred after the effective date of the amendment to section 7B1.3.  This con­duct was distinguishable from the criminal conduct that led to the imposition of super­vised release in 1988.  U.S. v. Schram, 9 F.3d 741 (9th Cir. 1993).

 

9th Circuit says 3-level reduction for ac­ceptance of responsibility is not retroac­tive. (130) De­fendant was sentenced in September 1991 and received a 2-level re­duction for acceptance of responsibility.  Ef­fective November 1, 1992, amendment 459 implemented a change in §3E1.1 and pro­vided for an additional 1-level downward ad­justment in certain circumstances.  Because the amendment was not listed in §1B1.10 as retroactive and clearly represented a substan­tive change, it was not retroactive or available to defendant.  The Ninth Circuit thus joined four other circuits that have ruled on the is­sue.  U.S. v. Avila, 997 F.2d 767 (10th Cir. 1993);  U.S. v. Dowty, 996 F.2d 937 (8th Cir. 1993); DeSouza v. U.S., 995 F.2d 323 (1st Cir. 1993); and U.S. v. Caceda, 990 F.2d 707, 710 (2d Cir. 1993).  U.S. v. Aldana-Or­tiz, 6 F.3d 601 (9th Cir. 1993).

 

9th Circuit says guidelines apply retroac­tively to guilty pleas entered before Mis­tretta. (130) The 9th Circuit held that the sentencing guidelines apply retroactively to guilty pleas, such as the one in this case, which was entered in the “window period” be­tween the 9th Circuit’s decision suspending the guidelines and the Supreme Court’s holding in Mistretta that the guidelines were Constitutional.  The version of Rule 11, Fed. R. Crim. P., in effect at defendant’s November 21, 1988 plea hearing did not obligate the court to tell defendant about the sentencing guidelines.  That the judge said he would be sentenced under the “old law” had no effect.  U.S. v. Roberts, 5 F.3d 365 (9th Cir. 1993).

 

9th Circuit says applying amended Wash­ington parole laws did not violate ex post facto clause. (130) In 1975, petitioner was convicted of first degree murder and sen­tenced to life imprisonment.  Under then-ex­isting Washington law, an inmate sentenced to life for first degree murder had to serve a mandatory minimum sentence of twenty years and then receive a certification and rec­ommendation for parole from the superin­tendent. The superintendent had absolute discretion in issuing the certification.  In 1989, the law was amended to give the Board of Prison Terms power to set terms for mandatory life prisoners.  The Board set peti­tioner’s minimum term at 380 months.  The Washington courts found no ex post facto vi­olation because on the whole, the new law benefited petitioner by providing certainty as to when he could be considered for parole.  Over a dissent by Judge Poole, Judges Hug and Wright found that applying the new law did not violate the ex post facto clause.  Peti­tioner was not deprived of an opportunity for an earlier parole and the Board retained dis­cretion to redetermine the minimum term.  Powell v. Ducharme, 998 F.2d 710 (9th Cir. 1993).

 

9th Circuit finds application of amended Oregon parole guidelines violated ex post facto clause. (130)) At the time of peti­tioner’s crimes, an Oregon state parole regu­lation provided that the Board of Parole could reduce certain sentences by 20%.  Thereafter, the parole regulations were amended to limit reductions to seven months of the three year period under review.  The Board applied the new regulations and reduced petitioner’s sen­tence by seven months rather than the 31.6 months he would have been eligible for under the earlier regulations.  Judges Tang, Kilkenny and Poole reversed, finding that ap­plying the new regulations violated the ex post facto clause.  Even though the Board of Parole retained discretion over reductions, petitioner’s opportunity for reduction was significantly limited.  In so holding, the court limited the impact of an earlier decision, Smith v. Parole Commission, 875 F.2d 1361 (9th Cir. 1988) to the federal parole guide­lines.  Flemming v. Oregon Board of Parole, 998 F.2d 721 (9th Cir. 1993).

 

9th Circuit says present version of guide­lines applies on resentencing. (130) Under the version of the guidelines applicable at the time of the original sentencing, the court had discretion to, and did, impose consecutive sentences under §5G1.3.  However, since the sentence in this case had to be vacated, the 9th Circuit noted that on remand, “absent an ex post facto problem, the district court must apply the version of the Sentencing Guide­lines in effect on the date of resentencing.”  Under the amended section 5G1.3, the court must impose concurrent sentences.  U.S. v. Fagan, 996 F.2d 1009 (9th Cir. 1993).

 

9th Circuit says that for law to be “ex post facto” it must be retrospective and must disadvantage the offender. (130) Quoting Weaver v. Graham, 450 U.S. 24, 29 (1981), the 9th Circuit said that “[t]wo critical ele­ments must be present for a criminal or pe­nal law to be ex post facto: it must be retro­spective, that is, it must apply to events oc­curring before its enactment, and it must dis­advantage the offender affected by it.”  In this case, the 9th Circuit held that U.S.S.G. sec­tions 4A1.1 and 4A1.2 were not retrospective laws because they were not enacted after the commission of defendant’s crime.  U.S. v. Carson, 988 F.2d 80 (9th Cir. 1993).

 

9th Circuit finds no ex post facto vio­lation in denying parole to California prisoner. (130) Petitioner was sen­tenced to life impris­onment under Cali­fornia’s Indeterminate Sen­tencing Law (ISL).  Following his sentencing, Califor­nia repealed the ISL and enacted the current Determinate Sentencing Law (DSL).  The new law required the DSL guidelines to be used in deciding whether to grant parole.  The 9th Circuit rejected the argument that this violated the ex post facto clause, noting that the DSL guidelines re­quire consideration of the same criteria as did the ISL.  Since pe­titioner was not disadvantaged by the DSL guidelines, the court found it un­necessary to de­termine whether the DSL guidelines were “laws” for ex post facto purposes.  See Smith v. U.S. Parole Commission, 875 F.2d 1361, 1367 (9th Cir. 1989) (holding that U.S. Parole Commission guidelines are not laws for ex post facto purposes.  Connor v. Es­telle, 981 F.2d 1032 (9th Cir. 1992).

 

9th Circuit reiterates that guidelines apply to of­fenses committed before Mistretta. (130) The 9th Circuit has repeatedly held that the guidelines apply retroactively to the period be­tween its decision hold­ing the guidelines unconstitutional in Gubiensio-Or­tiz v. Kanahele, 857 F.2d 1245 (9th Cir. 1988), and the Supreme Court’s decision up­holding the guide­lines in Mistretta v. U.S., 488 U.S. 361 (1989).  The appellant here ar­gued that the 9th Circuit’s prior cases were de­cided under the due process clause, rather than under the ex post facto clause.  Relying on Marks v. U.S., 430 U.S. 188, 191 (1977), the 9th Circuit said that the ex post facto clause is a limita­tion on the powers of the legislature, and does not of its own force ap­ply to the judicial branch of the gov­ernment.  Analyzing appel­lant’s arguments under the due process clause the court found no sub­stantial in­equity in sentencing him under the guidelines.  U.S. v. Robinson, 958 F.2d 268 (9th Cir. 1992), abrogation on other grounds recognized by U.S. v. Newman, 203 F.3d 700 (9th Cir. 2000).

 

9th Circuit holds that applying amended restitu­tion statute to defendant would vio­late the ex post facto clause. (130)) Nearly a year after defen­dant’s sentenc­ing, Congress added a provision to the Victim and Wit­ness Protection Act allowing courts to order resti­tution “in any criminal case” pursuant to a plea agreement. 18 U.S.C. section 3663(a)(3) (1990).  In a footnote, the 9th Cir­cuit held that applying this amendment to the defen­dant “would violate the ex post facto clause of the Con­stitution.  U.S. v. Snider, 957 F.2d 703 (9th Cir. 1992).

 

9th Circuit applies interpretation of career of­fender guide­line retroactively. (130) In U.S. v. O’Neal, 937 F.2d 1369 (9th Cir. 1991), the 9th Circuit held that the offense of being a felon in possession of a firearm is a crime of violence under the career offender guidelines.  Defendant argued that since his offense which was committed before O’Neal was decided, the court should not have applied the decision retroac­tively to him.  The 9th Cir­cuit rejected the argument, ruling that the “categorical analysis” in O’Neal was identical to the analysis undertaken in a 1988 case, U.S. v. Sherbondy, 865 F.2d 996 (9th Cir. 1988).  Therefore, under the three-part test for retroactivity applied in U.S. v. Gonzalez–Son­doval, 894 F.2d 1043, 1052, 53 (9th Cir. 1990), the O’Neal case “does not establish a new rule of law,” and therefore was properly ap­plied retroactively.  U.S. v. Oliveros-Orosco, 942 F.2d 644 (9th Cir. 1991).

 

9th Circuit holds that statute may not be ap­plied retroac­tively to increase defendants’ sen­tence. (130) In footnote 1 the 9th Circuit noted that effective February 27, 1991, Congress had added steroids to the list of controlled sub­stances.  However, citing Miller v. Florida, 482 U.S. 423 (1987), the court ruled that it could not apply this statute retroactively to increase the defendants’ sentence.  “Therefore the change in the statute does not affect this ap­peal.”  U.S. v. Shields, 939 F.2d 780 (9th Cir. 1991).

 

9th Circuit applies “relevant conduct” ruling retro­actively. (130) Defendant argued that in pleading guilty, he relied on U.S. v. Restrepo, 883 F.2d 781 (9th Cir. 1989), which prohibited aggregation of amounts of cocaine from charges that were dropped.  After he pled guilty, but before he was sentenced, Restrepo was withdrawn and a new opinion was filed, 896 F.2d 1228 (9th Cir. 1990) which allowed him to be sentenced for the 2 kilograms in the dropped count.  Ana­lyzing his claim under the due process clause, the 9th Circuit distin­guished U.S. v. Albertini, 830 F.2d 985 (9th Cir. 1987), on the ground that the defendant here was not convicted of any ad­ditional crime, he only had his sentence enhanced be­cause of the withdrawing of an opinion.  The court found that defen­dant had no legitimate expectation of finality in the Restrepo opinion because the government’s petition for re­hearing had not yet been denied and therefore the opinion “was not fixed as settled 9th Circuit law.”  Judge Rein­hardt concurred in the judgment because de­fendant was given the opportunity to withdraw his plea, and refused to do so.  U.S. v. Ruiz, 935 F.2d 1033 (9th Cir. 1991).

 

9th Circuit upholds rescinding parole date af­ter Mis­tretta. (130) After the 9th Circuit held the guidelines uncon­stitutional, the Parole Commis­sion granted peti­tioner a pre­sumptive parole date.  Soon after, however, the Supreme Court upheld the constitutionality of the guidelines in Mis­tretta v. U.S., 488 U.S. 361 (1989).  Thereafter, the Parole Commission notified petitioner that its previous action was in error, and that he would serve an unparo­lable sentence under the guidelines. On appeal from the denial of his habeas petition, the 9th Circuit upheld the Parole Commis­sion’s deci­sion, noting that Mistretta was fully retroactive.  The court also re­jected the petitioner’s argu­ment that the government was “estopped” to reverse its decision.  Peti­tioner failed to demonstrate that he relied to his detriment on the Commission’s short-lived decision.  Marsh v. Taylor, 925 F.2d 1131 (9th Cir. 1991).

 

9th Circuit holds that guidelines apply to “window pe­riod” between Gubiensio and Mis­tretta. (130) When the defen­dant pled guilty, he was on notice that the guide­lines were part of a properly enacted statutory scheme and that the Supreme Court had already granted certio­rari in Mistretta.  Thus even though the 9th Circuit had held the guidelines un­constitutional in the Gubiensio-Ortiz, the 9th Circuit held that “there was no unfairness in applying the guidelines” de­spite the different condi­tions which existed when defendant pled guilty.  U.S. v. Ramos, 923 F.2d 1346 (9th Cir. 1991), overruled on other grounds by U.S. v. Ruiz, 257 F.3d 1030 (9th Cir. 2001).

 

9th Circuit holds Mistretta applies retroac­tively to con­viction when guidelines had been held unconstitutional. (130) In U.S. v. Kincaid, 898 F.2d 110, 111 (9th Cir. 1990), the 9th Cir­cuit held that the Supreme Court’s ruling up­holding the guidelines in Mistretta v. U.S., 488 U.S. 361 (1989), applied retroactively to a de­fendant who pled guilty after the 9th Circuit had held the guide­lines unconsti­tutional in  Gubiensio-Ortiz v. Kanahele, 857 F.2d 1245 (9th Cir. 1988), vacated sub nom. U.S. v. Chavez-Sanchez, 109 S.Ct. 859 (1989).;  In this case, the 9th Circuit held that “the retroactivity analysis in Kincaid applies equally to a decision to go to trial and one to plead guilty.”  U.S. v. Boise, 916 F.2d 497 (9th Cir. 1990).

 

9th Circuit reiterates that guidelines apply retroactivity to “window” period when guide­lines were held un­constitu­tion­al. (130) The defendant argued that the guide­lines did not apply to him because he was sen­tenced after the 9th Circuit declared the guidelines un­constitutional in Gubi­ensio-Ortiz v. Kanahele, 857 F.2d 1245 (9th Cir. 1988), but before the Supreme Court up­held the guidelines in Mis­tretta v. U.S., 109 S.Ct. 647 (1989).  Relying on its earlier opinion in U.S. v. Kane, 876 F.2d 734, 735-36 (9th Cir. 1989), the 9th Circuit rejected the ar­gument, holding that the guidelines do apply retroactively during the “window” period.  U.S. v. Litteral, 910 F.2d 547 (9th Cir. 1990).

 

9th Circuit holds that nonguideline sentence imposed be­fore Mistretta may be collaterally attacked. (130) After the 9th Circuit held the guidelines unconstitu­tional, the defen­dant was sentenced to five years in cus­tody.  If the guidelines had been applied his maximum sentence would have been 21 months.  After the Supreme Court upheld the guidelines in Mistretta v. U.S., 109 S.Ct. 647 (1989), the de­fendant moved for reconsid­eration of his sen­tence under Fed. R. Crim. P. 35(b).  The 9th Circuit agreed with the district court that the current version of rule 35(b) did not permit reexamina­tion of the defendant’s sen­tence.  Nevertheless, the court held that the defendant could have petitioned the court to correct the sentence under 28 U.S.C. § 2255.  The case was remanded to en­able the district court to evaluate the motion as a peti­tion under 28 U.S.C. § 2255.  U.S. v. Eatinger, 902 F.2d 1383 (9th Cir. 1990).

 

9th Circuit holds that nonguideline sentence imposed be­fore Mistretta may be collaterally attacked. (130) After the 9th Circuit held the guidelines unconstitu­tional, the defen­dant was sentenced to five years in cus­tody.  If the guidelines had been applied his maximum sentence would have been 21 months.  After the Supreme Court upheld the guidelines in Mistretta v. U.S., 109 S.Ct. 647 (1989), the de­fendant moved for reconsid­eration of his sen­tence under Fed. R. Crim. P. 35(b).  The 9th Circuit agreed with the district court that the current version of rule 35(b) did not permit reexamina­tion of the defendant’s sen­tence.  Nevertheless, the court held that the defendant could have petitioned the court to correct the sentence under 28 U.S.C. § 2255.  The case was remanded to en­able the district court to evaluate the motion as a peti­tion under 28 U.S.C. § 2255.  U.S. v. Eatinger, 902 F.2d 1383 (9th Cir. 1990).

 

9th Circuit approves retroactive application of guide­lines where plea was entered after Gubi­ensio but before Mis­tretta. (130) Defendant plead guilty to two charges after the 9th Circuit found the guidelines unconstitu­tional in Gubi­ensio-Ortiz v. Kanahele, 857 F.2d 1245 (9th Cir. 1988) and before Gubiensio-Ortiz was implicitly over­ruled in Mistretta v. U.S., 109 S.Ct. 647 (1989).  The dis­trict court applied the sen­tencing guidelines over defen­dant’s objection.  The 9th Circuit found no signifi­cant difference in applying the guidelines to crimes committed between Gubiensio-Ortiz and Mistretta and those where the plea was entered during the same pe­riod, relying on the ra­tionale in U.S. v. Gonzalez-San­doval, 894 F.2d 1043 (9th Cir. 1990).  Since the crime was committed after the ef­fective date of the guidelines, the sen­tence was affirmed.  U.S. v. Kin­caid, 898 F.2d 110 (9th Cir. 1990).

 

9th Circuit holds that “good conduct” provi­sions of SRA apply even though the offense was com­mit­ted during the period when the Ninth Circuit held the guide­lines un­constitutional. (130) Prior to Nov­ember 1, 1987, federal law provided for a system of meritorious and work-re­lated good time cred­its, see 18 U.S.C. sec­tions 4162 and 4163.  The Sentencing Reform Act re­pealed those provi­sions and reduced the number of good time credits available, see 18 U.S.C. § 3624(b), Gubiensio-Ortiz v. Kanahele, 857 F.2d 1245 (9th Cir. 1988).  Defen­dant argued that the new good time provi­sions should not apply to him because he pled guilty af­ter the Ninth Circuit held the Sentencing Re­form Act uncon­stitutional in Gubiensio.  Reiterating the deci­sion in U.S. v. Kane, 876 F.2d 734, 736 (9th Cir. 1989), The 9th Circuit held that the Supreme Court’s Mistretta deci­sion, which over­ruled Gu­biensio, was retro­active.  Ac­cordingly, the “good time” credits enacted as part of the Sen­tencing Reform Act were effective November 1, 1987, and applied to the de­fendant.  U.S. v. Turner, 898 F.2d 705 (9th Cir. 1990).

 

9th Circuit reverses sentence based on appli­cation of guidelines to crime committed before effective date. (130) Defendant pled guilty to two crimes, one of which was committed be­fore November 1, 1987, the date the sentencing guidelines went into effect.  The district court applied the guidelines in sentencing the defen­dant to two equal concurrent sentences.  The 9th Circuit relied on U.S. v. De­Bright, 730 F.2d 1255 (9th Cir. 1984) to hold that it was impos­sible to foretell all future adverse col­lateral conse­quences flowing from the concurrent sen­tence, and that application of the guidelines to a crime occurring before the effective date of the guidelines re­quired re­mand for resentenc­ing under the prior law.  U.S. v. Kin­caid, 898 F.2d 110 (9th Cir. 1990).

 

9th Circuit holds sentencing guidelines apply to crimes committed between 9th Circuit finding of unconstitu­tion­ality and reversal by the Supreme Court. (130)  De­fendant’s crime of being found in the U.S. after de­portation occurred after the 9th Circuit found the guide­lines unconstitutional in Gubiensio-Ortiz v. Kanahele, 857 F.2d 1245 (9th Cir. Aug. 23, 1988) and before the Supreme Court overruled that case in Mistretta v. U.S., 109 S.Ct. 647 (Jan. 18, 1989).  Defendant claimed that therefore it was improper to apply the guidelines to him.  The 9th Circuit re­viewed the rules for retroac­tive appli­cation of court deci­sions set forth in U.S. v. Kane, 876 F.2d 734 (9th Cir. 1989) and held application of the guidelines proper.  U.S. v. Gon­zalez-Sandoval, 894 F.2d 1043 (9th Cir. 1990).

 

9th Circuit holds that career offender provi­sions apply to prior convictions occurring be­fore November 1, 1987. (130) Circuit Judges Alarcon and Thompson and Dis­trict Judge Tashi­ma held that Congress specifically man­dated that the Sentencing Commission use prior convic­tions that occurred before the guidelines took effect in deter­mining career offender status and in otherwise deter­mining a defendant’s crimi­nal history.  U.S. v. Sanchez-Lopez, 879 F.2d 541 (9th Cir. 1989).

 

9th Circuit holds Mistretta fully retroactive to sen­tences imposed when Ninth Circuit held guidelines unconstitu­tional. (130)  Defendant argued that the gov­ernment could not appeal his non-guide­lines sentence because it was im­posed after the Ninth Circuit held the Sen­tencing Reform Act uncon­stitutional in Gubi­ensio-Ortiz v. Kana­hele, 857 F.2d 1245 (9th Cir. 1988).  The 9th Circuit re­jected the argu­ment, holding that the Supreme Court’s deci­sion overruling Gubiensio in Mistretta v. U.S., 109 S.Ct. 647 (1989) is fully retroactive.  The court noted that when Gubiensio was de­cid­ed, the defendant was on notice that the Supreme Court had al­ready granted certiorari in Mistretta and might overrule Gubi­ensio.  More­over, ap­plying Mistretta retroactively will further the Act’s goal “to standardize sentenc­ing in fed­eral courts.”  U.S. v. Kane, 876 F.2d 734 (9th Cir. 1989).

 

9th Circuit rules that defendant had no rea­sonable ex­pectation of finality in non-guide­line sentence. (130) Double jeopardy pro­hib­its increasing the sentence after appeal only where the de­fendant “acquires a reasonable expecta­tion of finality in the severity of the sentence.”  Thus the 9th Circuit noted that “sen­tenc­ing may be al­tered as a re­sult of appeal even if the sentence is en­hanced and even though service of the sen­tence has al­ready commenced.”  Here, the fact that the defen­dant had already completed half of his sen­tence before Mis­tretta was decided was in­sufficient to create a rea­sonable expectation of finality in his non-guidelines sentence.  The case was reversed and remanded for resentenc­ing under the guidelines.  U.S. v. Kane, 876 F.2d 734 (9th Cir. 1989).

 

9th Circuit holds that parole provisions re­main in ef­fect until October 31, 1992, for indi­viduals convicted be­fore Sentencing Reform Act became effec­tive. (130) Peti­tioner con­tended that the Sentencing Reform Act of 1984 elimi­nated the Parole Commission’s authority to set parole eligibility dates be­yond the dates in the sug­gested parole guidelines.  The 9th Circuit re­jected the argument, noting that un­der § 235(b)(1) of the Sentencing Re­form Act, 18 U.S.C. § 4206 remains in effect for individuals convicted before Novem­ber 1, 1987, until October 31, 1992.  Ac­cordingly the repeal of § 4206 did not ap­ply to the petitioner.  Tripati v. U.S. Parole Commission, 872 F.2d 328 (9th Cir. 1989).

 

9th Circuit rules that Mistretta applies retroactively to crimes committed af­ter November 1, 1987. (130) In two brief orders af­fecting three defendants, the Ninth Circuit sum­marily reversed the non-guideline sen­tences im­posed in these three appeals, and re­manded them to the district court for resen­tencing un­der the Sentencing Reform Act of 1984.  The Act was upheld by the Supreme Court in Mis­tretta v. U.S., 109 S.Ct. 647 on Jan­uary 18, 1989.  U.S. v. Bazemore, 869 F.2d 520 (9th Cir. 1989);  U.S. v. Elfer, 868 F.2d 1146 (9th Cir. 1989).

 

9th Circuit holds that new parole guidelines do not ap­ply to prison­ers who will be released on parole before November 1, 1992. (130) The Sentencing Re­form Act of 1984 requires the Parole Com­mis­sion to set release dates within the appli­cable new parole guidelines for individu­als who will be in the Parole Commis­sions “jurisdiction” on the day before the expira­tion of five years after the effective date of the act.  The Ninth Cir­cuit held that “jurisdiction” means custody, and therefore the new guidelines did not apply to prison­ers who would be on parole or manda­tory release super­vi­sion at the ex­piration of the five year period.  The court also held that the ef­fective date of the Act was Novem­ber 1, 1987, not 1984, and therefore was inapplica­ble to prison­ers who would be released on pa­role before Novem­ber 1, 1992.  Kele v. Carlson, 854 F.2d 338 (9th Cir. 1988).

 

9th Circuit holds that even absent the Decem­ber 7, 1987 amend­ment, the Sen­tenc­ing Re­form Act of 1984 would not be retroactive. (130) The new Sentencing Reform Act of 1984 is not retroactive because the De­cember 7, 1987 amendment so pro­vides.  In denying this petition for re­hearing, the Ninth Circuit held that even without the Decem­ber 7, 1987 amendment, the new act would not apply to crim­in­al defendants sentenced prior to its effec­tive date, November 1, 1987, because “[a]bsent clear leg­islative intent, commonly ex­pressed through a retroactiv­ity clause, a statute is not given retroactive ef­fect.”  U.S. v. Rewald, 835 F.2d 215 (9th Cir. 1987).

 

10th Circuit includes pre-guidelines con­spiracy in drug quantity for guidelines of­fense. (130) Defendant was convicted of a cocaine conspiracy running from 1980 to July, 1987, and of distributing cocaine on May 20, 1992.  The 10th Circuit approved the use of drug quantities involved in the pre-guidelines conspiracy to determine defen­dant’s base offense level for the guidelines distribution charge.  This did not violate the ex post facto clause, the double jeopardy clause or due process, and was consistent with the relevant conduct guideline, section 1B1.3, since the drug quantities involved in the conspiracy were part of the same course of conduct as the distribution charge.  The evidence, when viewed in its entirety, estab­lished that defendant was actively engaged in the same type of criminal activity, distribu­tion of cocaine, from the 1980s through May, 1992.  Defendant’s conduct was sufficiently similar and the instances of cocaine distribu­tion were temporally proximate.  U.S. v. Roederer, 11 F.3d 973 (10th Cir. 1993).

 

10th Circuit upholds mandatory minimum sen­tence under section 841 despite in­dictment’s fail­ure to al­lege drug quantity. (130) The 10th Circuit rejected de­fendant’s argument that because his indictment did not allege a specific quantity of controlled sub­stance, he could not be subject to a manda­tory minimum sentence under 21 U.S.C. sec­tion 841.  U.S. v. McCann, 940 F.2d 1352 (10th Cir. 1991) plainly states that the im­position of a manda­tory minimum sentence is not pre­cluded by an in­dictment’s failure to allege drug quantity involved in a post-guide­lines case.  Although McCann was decided af­ter defendant was sentenced, its applica­tion did not violate the ex post facto clause.  Mc­Cann did not overrule prior law, but merely distinguished it and held it inapplicable to post-guidelines cases.  The sentencing guide­lines were promulgated well before de­fendant participated in the conspiracy.  U.S. v. Morehead, 959 F.2d 1489 (10th Cir. 1992).

 

10th Circuit holds defendant should be sentenced un­der the guidelines in effect on the date he was resen­tenced. (130) On June 20, 1989, defendant was sentenced to 130 months’ imprisonment.  On August 2, 1990, defen­dant filed a motion under 28 U.S.C. section 2255 to vacate his sen­tence.  The dis­trict court found that defense counsel failed to advise de­fendant of his right to ap­peal, and defen­dant was unaware of it until the time for filing the notice of ap­peal had passed.  Thus, on March 19, 1991, the dis­trict court simultane­ously vacated defen­dant’s June 20, 1989 sentence, reimposed it ex­actly as previously entered, and in­formed the defendant of his right to appeal.  Defen­dant then appealed his March 19, 1991 sen­tence.  The 10th Cir­cuit ruled that the date defen­dant was sentenced was March, 1991.  Although the March 1991 sen­tencing court merely reimposed the sentence exactly as it had been im­posed in June 1989, the court’s appellate jurisdic­tion re­sulted from the March, 1991 sentencing.  Thus, defen­dant should have been sentenced under the guide­lines in  effect in March 1991. U.S. v. Saucedo, 950 F.2d 1508 (10th Cir. 1991), abrogated on other grounds by Stinson v. U.S., 508 U.S. 36, 113 S.Ct. 1913 (1993).

 

10th Circuit affirms pre-guidelines sentence because defen­dant pled guilty to scheme end­ing October 1987. (130) De­fendant pled guilty to two counts of mail fraud and two counts of failing to file an income tax return.  Defendant contended that he should have been sentenced under the guidelines, because he continued to engage in criminal con­duct after the guidelines’ effective date.  The 10th Circuit rejected this argument.  “By pleading guilty, defendant ad­mitted that he committed the offense charged, namely, a mail fraud scheme ending in October 1987.  He cannot now challenge the fac­tual ba­sis of the charge to which he pleaded guilty.”  U.S. v. Morrison, 938 F.2d 168 (10th Cir. 1991).

 

10th Circuit applies Mistretta to defendant who was sen­tenced before Mistretta was de­cided. (130) The 10th Cir­cuit held that the Supreme Court’s decision uphold­ing the guide­lines in Mistretta v. U.S., 109 S.Ct. 647 (1989) re­quired that the defendant’s case be re­manded for resen­tencing.  His of­fense oc­curred after November 1, 1987 and the district judge imposed a non-guideline sentence before Mistretta was de­cided.  U.S. v. Bishop, 890 F.2d 212 (10th Cir. 1989).

 

10th Circuit holds that parolee entitled to re­lease prior to November 1, 1992, is not entitled to immediate re­lease under guideline parole transi­tion provision. (130) Rely­ing on the 2nd Circuit’s decision in Ro­mano v. Luther, 816 F.2d 832 (2nd Cir. 1987), which re­quires the Pa­role Com­mission to set re­lease dates for pris­oners within its juris­diction before November 1, 1992, the 10th Cir­cuit held that the Sen­tencing Reform Act did not re­quire the Pa­role Commis­sion to release a defendant within the pa­role guideline range.  The panel held that the Parole Commis­sion was not required to set defen­dant’s release date be­cause his term would expire well before the trig­ger date of Novem­ber 1, 1992.  Lewis v. Martin, 880 F.2d 288 (10th Cir. 1989).

 

11th Circuit finds post-enactment conduct suf­ficient to moot ex post facto challenge to manda­tory minimum. (130) Defendant was sentenced pursuant to a statutory mandatory minimum drug penalty.  He ar­gued that the sentence was improper, be­cause some of the conduct relied upon to de­termine his drug quantity occurred before the effective date of the statute.  The 11th Circuit disagreed, crediting the district court’s statement that it had not relied on the pre-en­actment conduct.  The district court’s conclu­sion that post-enactment conduct involved the requisite drug quantity was not clearly er­roneous.  Accordingly, the 11th Circuit did not address whether pre-enactment conduct could have been considered in determining drug quantity.  U.S. v. Adams, 1 F.3d 1566 (11th Cir. 1993).

 

11th Circuit upholds basing offense level on pre-guidelines offense. (130) In 1990, defen­dant committed perjury with regard to his involve­ment in a 1986 marijuana con­spiracy.  Guideline sec­tion 2J1.3(c)(1) pro­vides that if the of­fense involved per­jury in respect to an­other criminal offense, sec­tion 2X3.1 should be applied.  Section 2X3.1(a) calls for sentencing the defendant based upon the under­lying offense, which in this case was the 1986 mari­juana con­spiracy.  The 11th Circuit rejected defen­dant’s ar­gument that the applica­tion of section 2X3.1 violated the ex post facto clause, even though the un­derlying conspiracy occurred before the effective date of the guidelines.  Defendant was sentenced under guide­lines which were in effect at the time he com­mitted his perjury offense.  It was proper to use the underlying offense as a measure of the severity of the perjury offense.  U.S. v. Roderick, 974 F.2d 1270 (11th Cir. 1992).

 

11th Circuit holds that guidelines apply only to offenses committed after effective date. (130) The 11th Cir­cuit held that the Sentencing Reform Act of 1984 applies only to of­fenses committed on or after November 1, 1987.  The date of defendant’s conviction or sentencing is irrele­vant.  U.S. v. Metallo, 908 F.2d 795 (11th Cir. 1990).

 

11th Circuit holds sentencing guidelines apply only to of­fenses committed after their effective date. (130) De­fendant argued that the court erroneously imposed a pre-guideline sentence on defendant, where defendant’s indictment, con­viction and sentencing all occurred after the effective date of the sentencing guidelines.  The 11th Circuit rejected this ar­gument, hold­ing that the guide­lines apply only to those of­fenses committed after the effective date of the guidelines.  The date of defen­dant’s indictment, conviction and sentenc­ing are irrele­vant.  U.S. v. Fernandez, 905 F.2d 350 (11th Cir. 1990).

 

11th Circuit remands case for guidelines sen­tence where court originally held guidelines unconstitutional. (130) At the time of sen­tencing, the district court was not applying the guidelines because it had declared them uncon­stitutional.  The Supreme Court subse­quently up­held the constitution­ality of the guidelines.  Therefore the case was remanded for sen­tencing in ac­cordance with the guidelines.  U.S. v. Perez-Garcia, 904 F.2d 1534 (11th Cir. 1990), abrogation on other grounds recognized by U.S. v. Blankenship, 382 F.3d 1110 (11th Cir. 2004).

 

11th Circuit remands where district court failed to con­sider pre-guideline and guideline offenses separately. (130) De­fendant commit­ted most of his substantive crimes after the ef­fective date of the sentencing guide­lines.  However, defen­dant also committed several sub­stantive crimes before the guidelines’ effec­tive date.  In sentencing, the district court did not consider the guide­lines for any of the counts.  The 11th Circuit reversed, remanding for resentencing with instruc­tions for the dis­trict court to consider the guidelines in sen­tencing on all counts or to sentence on the pre-guidelines counts without reference to the guidelines and impose a guide­line sentence only on the post-guidelines counts.  U.S. v. Curry, 902 F.2d 912 (11th Cir. 1990).

 

11th Circuit holds guidelines not applicable to offenses committed before Nov. 1, 1987, even if other counts in in­dictment are subject to the guidelines. (130) Defen­dant was charged in a multi-count indictment with vari­ous drug and weapons charges, and received a non-guide­lines sentence.  After the Supreme Court up­held the guidelines in Mistretta v. U.S., 109 S.Ct. 647 (1989), he claimed that he should have been sentenced under (the more lenient) guidelines.  The 11th Circuit dis­agreed, but nevertheless vacated the entire sentence and remanded for resen­tencing.  The court held that al­though some counts may be subject to guidelines sen­tences, the ones which were committed before Nov. 1, 1989 are not subject to the guidelines. Furthermore, al­though the dis­trict court need not consider the guide­lines when imposing sentences for pre-guidelines of­fenses, it is permissible to do so.  The court rejected the defendant’s argument that the multiple count and grouping rules require a dif­ferent result, and placed no significant em­phasis on the government’s de­cision to charge pre- and post-guidelines conduct in a single in­dictment.  U.S. v. Johnson, 889 F.2d 1032 (11th Cir. 1989).

 

11th Circuit holds sentencing statute in effect at time of offense governs penalty. (130) The 11th Circuit held that it was an ex post facto violation to sentence a drug defen­dant to be maximum 15 year term under 21 U.S.C. § 841(b)(6), which had become effective prior to sen­tencing.  The prohibition against ex post facto laws re­quired that the defendant be sentenced according to the law in effect at the time of the offense, which was a maximum of five years.  Thus, the sen­tence was vacated.  U.S. v. Lightsey, 886 F.2d 304 (11th Cir. 1989).

 

11th Circuit rules that government’s decision to charge pre-guidelines conduct precludes application of guide­lines. (130) Defendant was convicted of two counts of counterfeiting which occurred prior to the guidelines and three counts (including con­spiracy) which occurred after the guidelines became ef­fective.  The district court sen­tenced him to a six year term for the preguidelines con­duct, with the guide­line sentence of 21 months to run concurrently.  The 11th Circuit affirmed the sentence on the grounds that it was within statutory limits and based upon proper considera­tions.  The court held that the guidelines were inapplica­ble to substantive violations which occurred prior to the effective date, even if they were part of a conspiracy which continued after the guidelines became effective.  Thus, defendant could not complain that he did not re­ceive a guideline sentence, which would have worked to his ben­efit.  U.S. v. Serra, 882 F.2d 471 (11th Cir. 1989).

 

11th Circuit holds government’s decision to charge pre-guidelines conduct precludes ap­plication of guidelines. (130) Defendant was convicted of two counts of counter­feiting which occurred prior to the guidelines and three counts (including con­spiracy) which occurred after the guidelines became ef­fective.  The district court sen­tenced him to a six year term for the preguidelines con­duct, with the guide­line sentence of 21 months to run concurrently.  The 11th Circuit affirmed the sentence on the grounds that it was within statutory limits and based upon proper considera­tions.  The court held that the guidelines were inapplica­ble to substantive violations which occurred prior to the effective date, even if they were part of a con­spiracy which continued after the guidelines became ef­fective.  Thus, defendant could not complain that he did not re­ceive guideline sentence, which would have worked to his ben­efit.  U.S. v. Serra, 882 F.2d 471 (11th Cir. 1989).

 

11th Circuit holds that pre-Act offender’s eli­gibility for parole is to be deter­mined under prior law. (130) De­fendant is scheduled to be­come eligible for parole in late 1992, and under prior law his eligibility date would not be de­termined until that time.  Section 235(b) of the SRA requires that, up to five years after the effective date of the guidelines, individuals within the jurisdiction of the Parole Commis­sion be given an anticipated relief date as soon as practicable.  Because defendant did not fall within that category, the district court did not err in re­fusing to order the Parole Com­mis­sion to set a date.  Valla­dares v. Keohane, 871 F.2d 1560 (11th Cir. 1989).

 

11th Circuit rules that pre-guidelines offender is not en­titled to have sentencing court con­sider guide­lines when im­posing sentence. (130) The Eleventh Circuit rejected a Rule 35 challenge to a sentence imposed upon a pre-guidelines defen­dant who would have received less time under the guide­lines.  Noting that Congress fixed the ef­fective date of the Act at Nov. 1, 1987, the panel held that the sentencing court was under no obliga­tion to consult the guidelines when sentencing pre-Act offend­ers, even for ad­visory purposes only.  U.S. v. Burgess, 858 F.2d 1512 (11th Cir. 1988).

 

D.C. Circuit finds amendment adding “failure to appear” was merely clarifying. (130) Prior to 1990, the application notes to 3C1.1 did not list fail­ure to appear in its “non-exhaustive” list of the types of conduct that can constitute obstruction of justice.  Defen­dant therefore argued that her failure to ap­pear could not support the adjustment.  The D.C. Circuit disagreed, finding the amend­ment to be a simple clarification of the prior guideline.  The court noted that even before the amendment, several courts had included failure to appear among the types of con­duct that could trigger the adjustment.  Accord­ingly, the court did not reach defendant’s ar­gument that application of the 1990 note would violate the ex post facto clause.  U.S. v. Monroe, 990 F.2d 1370 (D.C. Cir. 1993).

 

D.C. Circuit reaffirms that guidelines apply only to of­fenses committed after November 1, 1987. (130) The D.C. Circuit rejected defen­dant’s claim that the district court should have sentenced him under the sentencing guidelines.  Defendant was convicted of conduct that ended in April 1986, and the guidelines apply only to offenses committed on or after November 1, 1987.  Al­though defendant was also charged with a conspiracy ending after November 1, 1987, he was not convicted of that offense.  U.S. v. Hayes, 929 F.2d 741 (D.C. Cir. 1991).

 

D.C. Circuit rules that guidelines do not apply to es­capes committed before November 1, 1987. (130) De­fendant was convicted of bank robbery in 1987 and es­caped from prison three times before November 1, 1987, the effective date of the sentencing guidelines.  His ad­ditional sentence for the escapes was more than he would have received under the guide­lines, so he filed a complaint against the Parole Com­mission alleging that he had been denied due process.  The district court dis­missed the complaint for failure to state a claim upon which relief could be granted, and the D.C. Cir­cuit af­firmed, ruling that it was “patently obvious” that defen­dant could not prevail.  The sentencing guidelines only apply to offenses committed after November 1, 1987.  Baker v. Director, U.S. Parole Commission, 916 F.2d 725 (D.C. Cir. 1990).

 

Indiana District Court finds guidelines inap­plicable to contempt of court citation which occurred prior to Nov. 1, 1987. (130) The defen­dant was cited for criminal con­tempt on December 7, 1987, and pled guilty on Decem­ber 30, 1987.  Neverthe­less, the court held that the guide­lines were not appli­cable to the de­fendant’s sen­tence be­cause the actions giving rise to the citation all occurred prior to November 1, 1987, the effective date of the guidelines.  U.S. v. Misenheimer, 677 F.Supp. 1386 (N.D. Ind. 1988).

 

New York District Court refuses to impose guideline sentence for offense committed prior to effective date of Sentencing Reform Act. (130) De­fendant, who commit­ted an offense prior to November 1, 1987, requested that he receive a guideline sentence.  The district judge re­fused, stating that to do so would be an ex post facto viola­tion and that to impose a sen­tence under the guide­lines would require that the rest of the Sentencing Re­form Act would also have to be applied.  The court has no in­herent authority to impose a sentence without leg­islative autho­rization to do so.  U.S. v. Kelly, 680 F.Supp. 119 (S.D.N.Y. 1988).

 

Commission changes retroactivity policy statement. (130)  In a proposed amendment effective November 1, 1994, the Sentencing Commission added application note 2 to § 1B1.10 to specify that “[i]n determining the amended guideline range under subsection (b), the court shall substitute only the amendments listed in subsection (c) [previous subsection (d)] for the corresponding guideline provisions that were applied when the defendant was sentenced.  All other guideline application decisions remain unaffected.”  Another change clarified that eligibility for relief under 18 U.S.C. § 3582(c)(2) and § 1B1.10 is triggered only by an amendment listed in § 1B1.10(c) that lowers the applicable guideline range.

 

Commission extends “one book” rule to multiple offenses. (130) In a proposed amendment effective November 1, 1993, the Sentencing Commission ex­tended the “one book” rule, 1B1.11, to provide that “[i]f the defendant is convicted of two offenses, the first committed before, and the second after, a re­vised edition of the Guidelines Manual became effec­tive, the revised edition of the Guidelines Manual is to be applied to both of­fenses.”

 

Article questions proposed 1992 ex post facto amendment to guidelines. (130)  Steven M. Salkey and Robert Gulack question the wis­dom and need for 1992 Pro­posed Amend­ment 5, which would create a new sec­tion 2B1.11 of the Guidelines titled “Use of Guide­lines Manual in Effect on Date of Sen­tencing (Policy Statement).”  The authors note that the amendment was adopted without public comment after the Com­mission’s ex post facto position was rejected in U.S. v. Bell, 788 F.Supp. 413 (N.D. Iowa 1992), opinion vacated & superseded by, U.S. v. Bell, 991 F.2d 1445 (8th Cir. 1993).  The new amendment does not track the Commis­sion’s posi­tion in Bell.  Rather, it says that the guidelines in ef­fect on the date of sentenc­ing are applicable, unless this would violate the ex post facto clause, in which case the “entire Guidelines Manual” in effect on the date the offense was committed” should be used.  Steven M. Salkey, and Robert Gulack, The Ex Post Facto Amendment, 4 Fed. Sent. Rptr. 317 (1992).

Browse Contents

  • 100 Pre-Guidelines Sentencing, Generally
  • 110 Guidelines Sentencing, Generally
  • 150 Application Principles, Generally
  • 200 Offense Conduct, Generally
  • 400 Adjustments, Generally
  • 500 Criminal History, Generally
  • 550 Determining the Sentence
  • 700 Departures, Generally
  • 750 Sentencing Hearing, Generally
  • 780 Plea Agreements, Generally
  • 800 Violations of Probation and Supervised Release
  • 840 Sentencing of Organizations
  • 850 Appeal of Sentence (18 U.S.C. §3742)
  • 880 Habeas Corpus / 28 U.S.C. 2255 Motions
  • 900 – Forfeitures, Generally

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