§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).