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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

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§131 Ex Post Facto Amendments to Guidelines

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 says commentary amend­ment is binding despite prior court inter­pretation. (131) Pe­titioner was convicted of being a felon in posses­sion of a firearm.  He was sentenced as a career offender under the 1989 version of the Sentencing Guidelines.  After the sentence was af­firmed on appeal, the Com­mentary to §4B1.2 was amended to provide that the term “crime of violence” does not include the offense of unlawful possession of a firearm by a felon (amendment 433).  The 11th Circuit rejected a petition for re­hearing, ruling that commentary, though per­suasive, is of only limited authority and not binding.  In a unanimous opinion by Justice Kennedy the Supreme Court reversed, finding that with limited exceptions, guideline Com­mentary is au­thoritative.  Amendment 433 does not run afoul of the Constitution or a federal statute and is not incon­sistent with §4B1.2.  Consequently, it is binding on the courts.   Stinson v. U.S., 508 U.S. 36, 113 S.Ct. 1913 (1993).

 

Supreme Court holds “felon in possession of firearm” is not a crime of violence and remands for retroactivity ruling. (131) In a unanimous opinion written by Justice Kennedy, the Supreme Court held that, in ac­cordance with the amendment to the com­mentary to §4B1.2, the crime of being a felon in possession of a firearm is not a crime of vio­lence for career offender purposes.  How­ever, the Supreme Court did not address the question of whether the amended Commen­tary (amendment 433) applied to petitioner because the 11th Circuit had not addressed the government’s nonretroactivity ar­gument.  The government took the position that peti­tioner must file a motion under 18 U.S.C. §3582(c)(2) for resentencing and noted that amendment 469 pro­vided that amendment 433 may be given retroactive effect.  This is­sue was not “fairly included” within in the grant of certiorari and can be considered on re­mand.  Stinson v. U.S., 508 U.S. 36, 113 S.Ct. 1913 (1993).

 

Dissenter says Supreme Court should de­cide whether guideline amendments apply retroac­tively. (131) Dis­senting from the de­nial of a writ of certiorari in these cases, Jus­tice White noted that most courts of appeals apply guidelines amendments retroactively if they clarify, but do not substantively change, the opera­tion of an existing guide­line.  See U.S. v. Caballero, 936 F.2d 1292, 1299 n. 8 (D.C. Circuit 1991); U.S. v. Ur­banek, 930 F.2d 1512, 1514-1515 (10th Cir. 1991); U.S. v. Lillard, 929 F.2d 500, 502-503 (9th Cir. 1991); U.S. v. Fiala, 929 F.2d 285, 290 (7th Cir. 1991); U.S. v. Nissen, 928 F.2d 690, 694-695 (5th Cir. 1991); U.S. v. Perdomo, 927 F.2d 111, 116-117 (2nd Cir. 1991); U.S. v. Fells, 920 F.2d 1179, 1184 (4th Cir. 1990).  In contrast, the 8th Circuit has held that an amendment may not be ap­plied be­fore its effective date.  See U.S. v. Watts, 940 F.2d 332, 333 (8th Cir. 1991); U.S. v. Dortch, 923 F.2d 629, 632 n. 2 (8th Cir. 1991).  In the present cases, the 6th Circuit did not apply an amend­ment that took effect after the petitioners had been sen­tenced in district court, even though an earlier 6th Cir­cuit case, U.S. v. Sanchez, 928 F.2d 1450, 1458-1459 (6th Cir. 1991) had done so.  Citing Braxton v. U.S., 111 S.Ct. 1854, 114 L.Ed.2d 385 (1991), Jus­tice White noted that the Sentenc­ing Commission “has not ad­dressed this recurring issue,” and ac­cordingly he would grant certiorari.  Early v. U.S., 502 U.S. 920, 112 S.Ct. 330 (1991) and Cole­man v. U.S., 502 U.S. 920, 112 S.Ct. 330 (1991) (Justice White, J., dissenting).

 

1st Circuit rules reckless endangerment was grounds for departure, not enhancement. (131) The district court departed upward in part because at the time of his arrest, defendant led police on a high speed chase along the wrong side of a divided highway.  Defendant pointed out that the 1990 guidelines, not applicable to him, added a new provision specifically requiring a two point enhancement in such circumstances under section 3C1.2(b).  The 1st Circuit held that the district court properly used the reckless endangerment as a grounds for departure, rather than a section 3C1.2(b) enhancement.  Application of the new guideline, which would have required a two-level increase, would have violated the ex post facto clause.  Under the earlier 1989 guidelines, the matter was properly left to the court’s departure-related discretion.  U.S. v. Doe, 18 F.3d 41 (1st Cir. 1994).

 

1st Circuit refuses to retroactively apply 3-level acceptance of responsibility reduc­tion. (131) Defendant received a two level reduction for accep­tance of responsibility un­der section 3E1.1.  That section was amended to permit a three level reduc­tion af­ter she was sentenced, effective November 1, 1992.  The 1st Circuit affirmed the denial of defen­dant’s section 2255 mo­tion to correct her sentence.  The amendment substantively changed the preexist­ing guideline and did not merely clarify it.  Although the sentencing com­mission can designate a substan­tive change as retroactive, this amendment was not listed under sec­tion 1B1.10(d) as quali­fying for retroactive applica­tion.  Thus, the district court had no authority to modify de­fendant’s sentence even if it thought she would qualify for the additional one level re­duction.  DeSouza v. U.S., 995 F.2d 323 (1st Cir. 1993).

 

1st Circuit refuses to apply amendment retroac­tively where it conflicted with Cir­cuit caselaw. (131) In U.S. v. Gallego, 905 F.2d 482 (1st Cir. 1990), the 1st Circuit held that a fine is a criminal justice sentence, and therefore a defendant who has an unpaid fine should receive an enhancement under section 4A1.1(d) for committing the instant offense while under a criminal justice sentence.  In Novem­ber 1, 1991, a so-called clarifying amendment was added to the application notes, which stated that a sentence to pay a fine, by itself, would not trigger the enhance­ment.  The 1st Circuit held that this amend­ment, because it conflicted with established Circuit caselaw, was not a clarification, but substantive amendment, and therefore was not entitled to retroactive effect.  The court suggested the Sentencing Commission exer­cise restraint in labeling significant alter­ations to the commentary as “clarification.”  U.S. v. Prezioso, 989 F.2d 52 (1st Cir. 1993).

 

1st Circuit says obstruction amendment requiring investigation to be impeded was a clarification. (131) Defendant received an enhancement for obstruction of justice be­cause he made false state­ments to investiga­tors after his ar­rest.  After he was sentenced, the commentary to sec­tion 3C1.1 was amended effective November 1, 1990 to pro­vide that materially false statements to police that “significantly obstructed or impeded the official investigation or prosecution of the in­stant offense” warrant an en­hancement, but other false statements, not under oath, to po­lice do not.  The 1st Circuit held that this amendment was a clarification, rather than a sub­stantive change to section 3C1.1, and therefore should be applied to defendant’s sentencing.  The case was remanded for a de­termination of whether defendant’s state­ments significantly obstructed the official in­quiry.  Isabel v. U.S., 980 F.2d 60 (1st Cir. 1992).

 

1st Circuit says amendment permitting considera­tion of relevant conduct in role in offense was mere clarification. (131) The Introductory Commentary to Chapter 3 of the guidelines in effect on the date defen­dant was sen­tenced provided that a defen­dant’s role in the offense is to be based upon all relevant conduct.  This provi­sion was added to the guidelines by Amend­ment 345, which the sentencing commission explained was a “clarification” of the law.  Defendant contended that Amendment 345 was a sub­stantive change, and that it violated the ex post facto clause to determine his role in the offense based upon other relevant con­duct.  The 1st Circuit agreed that the law prior to the amend­ment was unclear, and that the Sentencing Commission could not, merely by labeling an amendment a clarifica­tion, change a meaning retroac­tively.  Nonetheless, the court affirmed the district court’s determina­tion.  U.S. v. Ruiz-Batista, 956 F.2d 351 (1st Cir. 1992).

 

1st Circuit rejects ex post facto claim based on re­liance on policy statement that went into ef­fect after crime. (131) The dis­trict court de­parted upward based upon sev­eral grounds, includ­ing the fact that de­fendants’ conduct was terrorism under guideline sec­tion 5K2.15.  Defendants con­tended that the district court’s reliance on the policy statement regarding ter­rorism violated the ex post facto clause because the state­ment was issued in November 1989, after the criminal acts were com­plete.  The 1st Circuit found that although the district court im­properly relied upon the statement, the error was “of no consequence.”  Defen­dants made no showing that the court’s reliance upon sec­tion 5K2.15 resulted in the imposition of more se­vere punishment than otherwise would have been or­dered.  The trial court ar­ticulated a number of legiti­mate bases for the departure apart from terrorism.  Moreover, even before the publication of section 5K2.15, the court was free to consider terrorism an ag­gravating factor not adequately considered by the sen­tencing commission.  U.S. v. John­son, 952 F.2d 565 (1st Cir. 1991).

 

1st Circuit refuses to apply amended guide­lines which would result in higher base offense level. (131) Defen­dant was sentenced three months after the November, 1989, amend­ments to the guidelines took effect.  Under guideline § 2B1.1(b), defendant’s base offense level would have increased from 13 to 17 under the amended provisions.  Since this would have raised ex post facto concerns, the 1st Circuit found that defendant was prop­erly sentenced under the 1987 ver­sion of the guide­lines in effect at the time defen­dant committed the offense.  U.S. v. Harotunian, 920 F.2d 1040 (1st Cir. 1990).

 

2nd Circuit applies guideline to alien who entered country before effective date but was arrested after. (131) Defendant was convicted under 8 U.S.C. §1326, which pro­hibits a deported alien from entering or being found in the United States without permis­sion.  The district court applied the 1991 version of 2L1.2(b)(2), though defendant had entered the country prior to the effective date of that version.  The 2nd Circuit found no ex post facto clause problem, since defendant was found in the United States after the effec­tive date of the guideline.  The statute says being found in the country is a separate of­fense from entering, and defendant was charged and pled guilty on both the theory of illegal entry and of being found in the coun­try.  U.S. v. Whittaker, 999 F.2d 38 (2nd Cir. 1993).

 

2nd Circuit refuses to apply 3-level credit for ac­ceptance of responsibility retroac­tively. (131) Effective November 1, 1992, section 3E1.1 was amended to permit a three level reduction for accep­tance of responsibil­ity, rather than the two level ad­justment in ef­fect when defendant was sentenced.  The 2nd Circuit rejected defendant’s request to apply the amended section 3E1.1 to him retroac­tively.  Sec­tion 1B1.10(d) does not include the 1992 amendment to section 3E1.1 in its list of retroactive amendments.   U.S. v. Caceda, 990 F.2d 707 (2nd Cir. 1993).

 

2nd Circuit considers drug conspiracy in deter­mining prison offense guideline. (131) Defendant, a corrections officer, was convicted of providing inmates with alcohol and escape equip­ment.  He also admitted, but was not convicted of, providing the inmates with cocaine.  The 2nd Circuit basing defen­dant’s sentence on section 2P1.2(c)(1), which provides that defendants convicted of 18 U.S.C. 1791(a)(1) should be sentenced under the narcotics guideline in section 2D1.1.  By providing inmates with cocaine, defendant’s conduct violated 18 U.S.C. 1791(a) and there­fore the cross-reference in section 2P1.2(c)(1) applied.  The fact that defen­dant was con­victed of conspiracy rather than the substan­tive offense, was irrelevant.  Nor did applying the cross-reference for conspiracy violate the ex post facto clause.  The November 1, 1991 amendment to application note 5 of section 1B1.3, which provided that conspiracy of­fenses are to be treated like sub­stantive of­fenses, was a clarification, rather than a change in the substantive law.  U.S. v. Mapp, 990 F.2d 58 (2nd Cir. 1993).

 

2nd Circuit refuses to retroactively apply three level acceptance of responsibility reduction. (131) Defendant received a two level reduction for acceptance of responsibil­ity.  Effective November 1, 1992, two years after he was sentenced, section 3E1.1 was amended to permit, under certain circum­stances, a three level reduction.  The 2nd Circuit re­jected defendant’s contention that this amendment should be applied to him retroactively.  Section 1B1.10(d) of the November 1992 guidelines lists those amendments which may be considered by a court to subsequently reduce a previously imposed sentence.  The November 1992 amendment to section 3E1.1 is not listed there.  U.S. v. Rodriguez, 989 F.2d 583 (2nd Cir. 1993).

 

2nd Circuit permits district court to deter­mine whether to apply amendments adopted during ap­peal. (131) After defen­dant was sentenced and while his appeal was pending, the commentary to section 1B1.3 was amended to provide that conduct “associated with” a prior sentence should not be con­sidered relevant conduct.  This amendment would have reduced the quantity of drugs for which defen­dant was held ac­countable.  The 2nd Circuit re­manded for the district court to determine whether it had the authority to apply the amendment retroac­tively, and if it did, whether it wished to exer­cise its discretion to do so.  In 18 U.S.C. sec­tion 3582(c)(2), Congress conferred authority on a sentencing court to reduce the term of imprisonment for a defendant who has been sen­tenced to a term of imprisonment based on a sen­tencing range that has subsequently been lowered by the Sentencing Commission.  By au­thorizing, but not re­quiring, sentencing courts to re­duce sentences in light of guide­line revisions, Congress expressed a prefer­ence for discretionary district court action in response to amendments, rather than for mandatory appellate court application of all post-sentence amendments to pending ap­peals.  U.S. v. Colon, 961 F.2d 41 (2nd Cir. 1992).

 

2nd Circuit declines to apply amendments to guidelines piecemeal. (131) Defendant was sentenced under the Octo­ber, 1988 guidelines and his sentence was vacated on unre­lated grounds.  Before he was resentenced, the guidelines were amended in November, 1989.  Applying the amended guidelines would have resulted in a three-level increase in offense level, so the district court used the prior ver­sion of the guidelines.  Defendant argued that the court should not have used the prior ver­sion as a whole, but should have con­sidered each amended provi­sion in isolation and ap­plied only those amended provi­sions which were to his benefit.  The 2nd Circuit rejected this argument.  “Applying various provi­sions taken from different versions of the guidelines would upset the co­herency and balance the Commission achieved in pro­mulgating the ob­jective of seeking uniformity in sentenc­ing.”  U.S. v. Stephenson, 921 F.2d 438 (2nd Cir. 1990).

 

2nd Circuit rejects downward departure based upon federal and state prosecution for related offenses. (131) Defendant engaged in a scheme to defraud several banks through check-kiting.  Defendant pled guilty in state court to de­frauding one bank.  Upon defendant’s release, he was transferred to federal authorities, where he pled guilty to fraudulently withdrawing funds from another bank.  Defen­dant argued that under the version of guidelines’ § 5G1.3 in effect when he committed his of­fenses, if he had been prosecuted concurrently by the state and federal gov­ernment, this would have re­quired concurrent sentences.  Since the federal govern­ment delayed his prosecution, de­fendant reasoned that he was entitled to a downward depar­ture to prevent him from be­ing prejudiced by the indepen­dent prosecu­tions.  The 4th Circuit rejected this argument, finding that § 5G1.3 was significantly amended prior to the sen­tencing of defendant.  The version in effect on the date defendant was sentenced did not mandate that the dis­trict court depart downward, and the 4th Circuit found that it had no jurisdiction to review the district court’s discretionary refusal to depart from the applicable guidelines range.  U.S. v. Adeniyi, 912 F.2d 615 (2nd Cir. 1990).

 

2nd Circuit rules that amendments to guide­lines may help clarify the commission’s initial intent. (131) The 2nd Circuit stated that sub­sequent amendments to the sentencing guide­lines following a defendant’s sentenc­ing “may help clarify .ÿ.ÿ. the sentencing commission’s initial intent and thus may assist in interpreting a guideline as it read at the time of sentenc­ing.”  Here, however, the 2nd Circuit held that the prohibition for enhancement for the number of firearms involved in de­fendant’s offense was unambiguous and no interpreta­tion of it was required.  U.S. v. Schular, 907 F.2d 294 (2nd Cir. 1990).

 

2nd Circuit holds that modifications to drug quantity table apply only to offenses commit­ted after Nov. 1, 1989.  (131) Effective Nov. 1, 1989, the drug quantity table of U.S.S.G. § 2D1.1(c) was modified to des­ignate higher offense levels for categories correspond­ing to amounts of co­caine in excess of 50 kilograms.  The 10th Circuit held that “those guidelines are appli­cable only to offenses committed after Nov. 1, 1989.”  U.S. v. Schaper, 903 F.2d 891 (2nd Cir. 1990).

 

3rd Circuit reverses for failure to apply more lenient guidelines in effect at sen­tencing. (131) Defendant pled guilty to un­lawful flight to avoid prosecution.  He was sentenced under the 1989 guidelines in effect at the time of the offense, rather than the 1991 guidelines in effect at sentencing.  The 1989 version of section 2J1.6 permitted the court to consider defendant’s underlying murder conviction in calculating his criminal history; the 1991 version did not. The 3rd Circuit reversed, noting that a sentencing court should generally apply the guidelines in effect when the defendant is sentenced; it is only when this would result in a more severe penalty that ex post facto concerns arise and courts must apply the guideline in effect at the time of the offense.  Because application of the 1991 guidelines would result in a lesser, not a harsher, penalty, no ex post facto concerns were present.  On remand, the court was instructed to apply the guideline in effect at the time of resentencing.  U.S. v. Cherry, 10 F.3d 1003 (3rd Cir. 1993).

 

3rd Circuit disapproves of “one book rule” where it would violate ex post facto clause. (131) Defen­dants pled guilty to various counts of consumer fraud, bribery, conspir­acy and tax evasion.  The 3rd Circuit re­manded for resentencing because the dis­trict court applied the post-1989 guidelines with­out considering whether the offenses had been commit­ted before or after November 1, 1989.  When retroac­tive application of the current version of the guide­lines results in more severe penalties than those in effect at the time of the offense, the earlier guide­lines con­trol.  The court expressly disapproved of the so-called “one book rule” — that only one set of the guidelines should be used in calcu­lating the applica­ble sentence “as a cohesive and integrated whole.”  Such a rule is incon­sistent with Circuit caselaw pro­hibiting the application of more stringent penalties than were authorized at the time of the offense.  U.S. v. Seligsohn, 981 F.2d 1418 (3rd Cir. 1992), superseded by guideline on other grounds as state in U.S. v. Corrado, 53 F.3d 620 (3d Cir. 1995).

 

3rd Circuit says applying post-Hughey amend­ments to VWPA would violate ex post facto clause. (131) In Hughey v. U.S., 495 U.S. 411 (1990), the Supreme Court held that a resti­tution order un­der the VWPA must be based only on the loss caused by the conduct that formed the basis of the convic­tion.  After Hughey, Congress amended the VWPA to provide that (a) when an offense in­volves a pattern of criminal activ­ity, “victim” means a person who is di­rectly harmed by that pattern, and (b) the court is au­thorized to or­der restitution to the extent that the par­ties have agreed to it in a plea agreement.  These amendments became effective after de­fendants com­mitted their offense but before they entered plea agreements.  The 3rd Cir­cuit held that because these amendments worked to the detri­ment of defendants by enlarging a court’s power to order restitution, ap­plication of the amendments to defendants was pro­hibited by the ex post facto clause. U.S. v. Seligsohn, 981 F.2d 1418 (3rd Cir. 1992), superseded by guideline on other grounds as state in U.S. v. Corrado, 53 F.3d 620 (3d Cir. 1995).

 

3rd Circuit reverses role adjustment based on rel­evant conduct, despite later amend­ment. (131) For the first time on appeal, de­fendant argued that the court erred in con­sidering relevant conduct in making a four level leader­ship en­hancement under section 3B1.1(a).  The 3rd Circuit agreed, ruling that under its decision in U.S. v. Murillo, 933 F.2d 195 (3rd Cir. 1991), consideration of rele­vant conduct was plain error.  The error was not harmless because the district court might not have departed upward to impose the same sentence without the enhancement.  The court noted that the guidelines were amended effective November 1, 1990, a few months af­ter defendant was sen­tenced, to spec­ify that relevant conduct should be considered in making role adjustments.  But the court ruled that if the guideline in effect at the time of the offense is more favorable to a defendant, it must be applied. U.S. v. Pollen, 978 F.2d 78 (3rd Cir. 1992).

 

3rd Circuit remands for application of earlier version of guidelines because government agreed to their use. (131) Defendant objected to the district court’s use of the sen­tencing guidelines loss table in effect at the time of sentenc­ing rather than the table in effect at the time of the offense.  The newer guidelines re­sulted in a guideline range of 27 to 33 months, instead of 21 to 27 months.  The 3rd Circuit found it unnecessary to address defendant’s ar­guments in fa­vor of resentencing because the government advised the court that it had no objection to the use of the earlier guidelines.  On remand, the district court was in­structed to apply the earlier version of the guidelines.  U.S. v. Barel, 939 F.2d 26 (3rd Cir. 1991).

 

3rd Circuit finds defendant’s eligibility for probation should be based on classifications in effect when offense was com­mitted. (131) Defendant committed an offense which, at the time it was committed, was a Class B felony.  By the time he was sentenced, the law had been amended and de­fendant’s offense was re­classified as a Class C felony.  One who com­mits a Class C felony is eligible for probation, while one who commits a Class B felony is not.  The district court determined that defen­dant had committed a Class C felony, and sentenced her to probation.  The 3rd Circuit remanded for resentenc­ing.  The “savings statute,” 1 U.S.C. § 109, provides that the repeal of any statute does not extinguish any “penalty” incurred under such statute, and such statute will be treated as remaining in force for the purpose of en­forcing such penalty.  The court found that ineligibility for probation was a type of penalty, and therefore the savings statute prohibited the application of the amend­ment to de­fendant.  U.S. v. Jacobs, 919 F.2d 10 (3rd Cir. 1990).

 

3rd Circuit upholds applicability of guidelines even though defendant escaped before effective date. (131) Defendant escaped from federal prison in September, 1986, and was not recap­tured until July, 1989.  He ar­gued that his 27-month guideline sentence violated the ex post facto clause because he committed the escape before the effective date of the guidelines, November 1, 1987.  The 3rd Circuit rejected the argument, ruling that escape is a continuing offense, and the defendant never attempted to turn himself in during the two and one-half years he remained at large.  U.S. v. Audinot, 901 F.2d 1201 (3rd Cir. 1990).

 

4th Circuit refuses to consider ex post facto argu­ment not raised below. (131) De­fendant ar­gued for the first time on appeal that it violated the ex post facto clause to sen­tence him under the guide­lines in effect at the time he was sentenced because that version dictated a harsher sentence than he would have received under the guidelines in effect at the time he committed the offense.  The 4th Circuit declined to reach this issue because it was not raised below at defendant’s sentenc­ing hearing.  U.S. v. Hartzog, 983 F.2d 604 (4th Cir. 1993).

 

4th Circuit rejects district court’s interpola­tion between two offense levels. (131) Defen­dant argued that the amount of cocaine in­volved in his offense was 13.7 kilo­grams, which would result in a base offense level of 32.  The probation of­fice found that the offense in­volved 17.3 kilograms, which would result in a base offense level of 34.  The district court did not determine the amount of cocaine involved, but as­signed a base offense level of 33, splitting the difference be­tween levels 32 and 34.  The 4th Circuit rejected this calcula­tion, and re­manded the case for resentencing.  Although a previous version of the guidelines authorized interpolation when it was un­certain whether the quantity of drugs fell into one cate­gory or another adjacent category, this reference had been deleted from the guidelines at the time defendant was sentenced.  The law in effect when the district court sentenced defendant required the court to determine the quantity of drugs involved, and then apply the appropri­ate guideline sentence.  U.S. v. Engleman, 916 F.2d 182 (4th Cir. 1990).

 

4th Circuit holds that prior version of guide­lines per­mitted consideration of defendant’s relevant conduct. (131) Defendant argued that relevant conduct could not be consid­ered in calculating his base offense level be­cause his offense occurred prior to amendments to guideline § 1B1.2 and 1B1.3, which be­came effec­tive January 18, 1988.  The prior version of these sec­tions, defendant argued, did not permit consideration of relevant conduct.  The 4th Circuit, following the 2nd, 6th and 10th Circuits, found that the amendments were not substantive changes, but simply clarified exist­ing law that relevant conduct should be used to determine a de­fendant’s base offense level.  U.S. v. Deigert, 916 F.2d 916 (4th Cir. 1990).

 

5th Circuit rejects ex post facto claim where de­fendant did not argue earlier guideline would have resulted in more lenient sentence. (131) De­fendant argued that the district court violated the ex post facto clause by applying a version of section 4A1.2 which took effect after he committed his of­fense.  Under the November 1, 1991 commentary to section 4A1.2, the district court treated his prior sen­tences separately, because the underlying convictions were separated by intervening arrests.  The 5th Cir­cuit found that defendant was not entitled to relief, since he did not argue that the district court’s actions subjected him to a more severe sentence.  Defendant did not contend that his prior convictions would have been found related if the district court had applied the earlier version of the guidelines.  U.S. v. Calver­ley, 11 F.3d 505 (5th Cir. 1993).

 

5th Circuit requires defendant to accept responsi­bility for relevant conduct under pre-1992 guide­lines. (131) Defendant ad­mitted committing the offense of conviction, but refused to take responsibil­ity for previous drug dealings.  The 5th Circuit af­firmed that under the pre-November 1, 1992 version of section 5E1.1, defendant was required to ac­cept responsibility for all relevant conduct in order to be granted the reduction.  Although the guideline was amended effective Novem­ber 1, 1992 to delete this requirement, this amendment became effective after defendant was sentenced.  The court said guideline changes generally should not be applied to cases in which the defen­dant was sentenced before the amendment took ef­fect.  U.S. v. Windham, 991 F.2d 181 (5th Cir. 1993).

 

5th Circuit says reliance on amended guideline to justify departure violated ex post facto clause. (131) Defendant received almost $800,000 as proceeds from her mail fraud scheme.  After the offense was commit­ted, section 2F1.1(b)(1) was amended (effective 1992) to increase the offense level for frauds involving $800,000.  Although the 1988 guideline was applicable to defendant, the pre­sentence report recommended an up­ward departure based upon the amendments to the guideline.  The 5th Circuit held that the district court’s reliance on the 1992 amended version of section 2F1.1(b)(1) vi­olated the ex post facto clause.  The court distin­guished U.S. v. Bachynsky, 949 F.2d 722 (5th Cir. 1991), in which the district court merely used the amendment to guide its permitted discre­tion to de­part upward.  Here, the district court appeared to ig­nore the applicable pre-amendment provisions, which did not permit an upward departure if only $800,000 was defrauded. U.S. v. Davidson, 984 F.2d 651 (5th Cir.  1993).

 

5th Circuit upholds court’s discretion to collater­ally review validity of prior convic­tions. (131) Prior to November 1990, appli­cation note 6 to section 4A1.2 stated that sen­tences based on convictions “which the de­fendant shows to have been constitu­tionally invalid” should not be counted in a defen­dant’s criminal history.  Effective November 1990, the application note was amended to provide that sentences from convic­tions “which the defendant shows to have been previously ruled constitution­ally invalid” are not to be counted.  However, back­ground note 6 to that sec­tion explicitly reserves “for court de­termination the issue of whether a de­fendant may collaterally attack at sen­tencing a prior convic­tion.”  The 5th Cir­cuit, following the 2nd and 11th Cir­cuits, held that this allows a district court, in its discretion, to inquire into the validity of prior convictions at the sentencing hearing.  Because the amended applica­tion note is nothing more than a procedural provi­sion that governs how challenges to prior convic­tions may be brought, application of the amended note to defendant did not vio­late the ex post facto clause.  U.S. v. Canales, 960 F.2d 1311 (5th Cir. 1992).

 

5th Circuit upholds enhancement for dis­charge without a permit despite proposed amendment to guideline. (131) The 5th Circuit upheld an enhancement under guide­line section 2Q1.2(b)(4) for discharge without a permit, even though the offense of convic­tion, dis­charge of industrial waste, involved discharge without a permit.  The district court followed section 2Q1.2(b)(4) “to the let­ter” when it added four levels because the of­fense involved a discharge without a permit.  That the sentencing commission was consid­ering an amendment to this guideline did not alter the propriety of the enhancement.  U.S. v. Goldfaden, 959 F.2d 1324 (5th Cir. 1992)

 

5th Circuit grants rehearing to apply re­duced money laundering guideline amendment retroac­tively. (131) Defendant was con­victed of failing to file a cur­rency re­port declaring that he was trans­porting more than $10,000 in cash from the United States.  He was sentenced under guideline section 2S1.3(a)(1)(B), which carries an of­fense level of 13, and the 5th Cir­cuit af­firmed.  On re­hearing, the 5th Circuit vacated that por­tion of its opinion because af­ter the decision was pub­lished, amendments to the guidelines ren­dered defen­dant’s sentence ex­cessive.  Amendment 379, effective November 1, 1991, created a new sec­tion 2S1.4, car­rying a re­duced offense level for of­fenses involving the failure to file a currency re­port.  Section 1B1.10(d) pro­vides that Amendment 379 ap­plies retroactively.  U.S. v. Park, 951 F.2d 634 (5th Cir. 1992), vacat­ing in part U.S. v. Park, 947 F.2d 130 (5th Cir. 1991).

 

5th Circuit upholds sentencing under guide­lines that went into effect two days prior to of­fense. (131) Defen­dant claimed that the district court unfairly sentenced him under a more stringent version of the guidelines that went into effect two days prior to his arrest.  The 5th Circuit found that defen­dant was properly sentenced under the version of the guide­lines in effect at the time he was arrested while committing the offense.  U.S. v. Shaw, 920 F.2d 1225 (5th Cir. 1991).

 

5th Circuit rules that prior version of guide­lines re­quired showing of scienter to increase offense level for possession of a firearm. (131) Defendant pled guilty to pos­session of cocaine with intent to distribute.  The dis­trict court in­creased defendant’s offense level by two based upon her possession of an unloaded semi-auto­matic pistol and a fully loaded clip.  The gun and clip were found under defendant’s bed at the time police of­ficers searched her house and seized drugs both from her room and other parts of the house.  The 5th Circuit upheld the district court’s finding that defendant possessed the weapon while committing the drug offense. The court found that the version of guideline § 1B1.3 in effect at the time defendant committed the crime re­quired a showing of scienter before the offense level could be increased under guideline § 2D1.1(b).  Section 1B1.3 had been amended by the date of defendant’s sen­tencing to remove the scienter requirement.  Although the Sentencing Reform Act re­quires courts to consider the guidelines and policy state­ments in effect on the date of sentencing, the 5th Circuit found that application of the amended guideline to defen­dant’s crime would violate the ex post facto clause, since it would clearly “change the legal consequences of acts com­pleted before its effective date.”  The case was remanded for the district court to deter­mine whether defendant had the requisite sci­enter.  U.S. v. Suarez, 911 F.2d 1016 (5th Cir. 1990).

 

5th Circuit holds that motion to modify based upon possi­ble retroactivity of amended guide­line must be filed in dis­trict court. (131) The defendant argued that because the Commis­sion had amended the consecutive sentence guide­line, 5G1.3, his case should be remanded for resentencing to give the court an opportu­nity to con­sider the possible retroactivity of the amended guideline under 18 U.S.C. § 3582(c) and § 1B1.10.  The 5th Circuit rejected the argument, noting that § 1B1.10(a) states that a change in the guide­lines that results in the possibility of a lower sen­tencing range may be a ground for reconsider­ation of sentence under § 3582(c)(2) only in the case of a few par­ticular amendments, namely those amendments listed in § 1B1.10(d).  Moreover under § 3582(c)(2), the de­fendant must first file his motion for modification with the district court.  U.S. v. Miller, 903 F.2d 341 (5th Cir. 1990).

 

6th Circuit applies guidelines in effect when defendant ordered tapes, not when he re­ceived them. (131) Defendant ordered pornographic tapes by mail from an under­cover operation in April, 1990.  The govern­ment delivered the tapes to defen­dant November 7, 1990.  Effective November 1, 1990, section 2G was amended so that de­fendant’s offense was covered by section 2G2.2, which carried a higher base offense level than the previously applicable sec­tion 2G3.1.  The 6th Circuit held that the applica­tion of the November 1990 guidelines to de­fendant vio­lated the ex post facto clause, and that he should be resentenced under the guidelines in effect when he ordered the tapes.  The fact that the indictment charged that defendant committed a crime on Novem­ber 7, 1990 did not mean that, for sentencing purposes, defendant committed the crime on Novem­ber 7, 1990.  Judge Guy concurred.   U.S. v. Kussmaul, 987 F.2d 345 (6th Cir. 1993).

 

6th Circuit affirms district court’s discre­tion to permit collateral attack on prior convictions. (131) The 6th Circuit affirmed that under the 1987 version of application note 6 to section 4A1.2, defendant could col­laterally attack the inclusion of prior convic­tions in his criminal history.  Although defen­dant’s sentencing took place after the effective date of amended note 6, the offense for which he was sentenced occurred prior to the amendment, and ap­plying the amended note to defendant would cause an ex post facto problem.  Moreover, the court held that un­der the November 1990 version of note 6, it was within the district court’s discretion to determine whether a defendant could collat­erally attack the use of prior convictions at sentencing where the defen­dant had not pre­viously challenged the convictions.  Judge Boggs dissented.  U.S. v. Hoffman, 982 F.2d 187 (6th Cir. 1992).

 

6th Circuit finds no ex post facto problem because amendments did not change guideline range. (131) Defen­dant’s presen­tence report calcu­lated his guide­line range under the guidelines in ef­fect at the time of the offense.  The magistrate’s report recom­mended adop­tion of the presentence report’s sen­tencing cal­culations, finding the same sen­tencing range appro­priate, but using the November 1989 guidelines, which went into effect af­ter defendant commit­ted his offense.  The district court adopted the presentence report, but it was un­clear what version of the guide­lines were used.  The 6th Circuit found that because application of the guide­lines in effect at the time of sentencing led to no harsher sentence, the magis­trate’s use of the November version of section 2K2.3 was ap­propriate and cre­ated no ex post facto prob­lems.  If the district court erroneously re­lied on the presentence report’s use of the old guidelines, the er­ror was harmless. U.S. v. Holmes, 975 F.2d 275 (6th Cir. 1992).

 

6th Circuit uses new amendment to interpret earlier guide­line. (131) Guide­line § 3C1.1 was amended in 1990 to specifically ex­clude from enhancement avoiding or fleeing from arrest.  Although this amended guideline did not apply to defendant, the 6th Circuit held that “proper application of the Guidelines on a consistent ba­sis warrants a remand for resen­tencing.”  U.S. v. Sanchez, 928 F.2d 450 (6th Cir. 1991).

 

7th Circuit says guidelines are subject to the ex post facto clause. (131) Although neither party originally raised this issue, the 7th Circuit, joining all of the other circuits that have decided the issue, held that guideline amendments are subject to the ex post facto clause.  The court rejected the suggestion in U.S. v.  Bader, 956 F.2d 708 (7th Cir. 1992) that a change in a guideline is similar to a prosecutor’s “get-tough” policy or to the appointment of a new judge who favors longer sentences.  Courts must impose sentences consistent with the guidelines.  They represent minimum and maximums that are superimposed over the statutory penalties.  Thus, the district court committed plain error in applying the 1990 guidelines rather than the 1988 guidelines in effect when defendant committed his crime.  The 1990 guidelines resulted in a sentence that was potentially three months longer.  Judge Easterbrook did not join this portion of the opinion since the question was not raised by either party and was not pertinent to the disposition of the case.  U.S. v. Seacott, 15 F.3d 1380 (7th Cir. 1994).

 

7th Circuit remands to consider whether applying amended guideline would violate ex post facto clause. (131) Until November 1, 1991, section 2F1.1(b)(6) provided for an enhancement if the fraud offense “substantially jeopardized the safety and soundness of a financial institution.”  Effec­tive November 1, 1991, the guideline was amended to also provide an enhancement where the offense “affected a financial institu­tion” and the defendant derived more than $1 million from the offense.  Defendant argued for the first time on appeal that applying the amended guideline to him violated the ex post facto clause.  The 7th Circuit remanded for consideration of this issue, even though de­fendant had not raised the issue below, be­cause of the gravity of the constitutional con­cerns.  Defendant’s guilty plea to a scheme running from May 1988 continuing until “on or about November 1991” was not an admis­sion that his activities continued beyond the effective date of the amendment.  U.S. v. Kopshever, 6 F.3d 1218 (7th Cir. 1993).

 

7th Circuit applies amendment to defen­dant who possessed handgun after amendment. (131) Defendant’s indictment charged him with receiving a handgun while a fugitive in violation of 18 U.S.C. section 922(g)(2). Although defendant received the gun prior to a November 1990 amendment to section 2K2.1, the district court applied the post-amendment version.  Noting that defen­dant had possessed the gun after the amendment date, the 7th Circuit affirmed.  Although the indictment had charged defen­dant with receipt rather than possession, de­fendant was not prejudiced, because the statute proscribed both receipt and posses­sion and a second count against defendant — for transporting the gun — implicated the question of possession after the amendment.  U.S. v. Ballentine, 4 F.3d 504 (7th Cir. 1993).

 

7th Circuit says applying amended guide­lines would have resulted in same sen­tence. (131) Effective November 1, 1991 (after defendant committed his offense but before he was sentenced), (a) §2K2.1 was amended to increase the base offense level for a felon-in-possession offense from 12 to 24, and (b) the commentary to §4B1.1 was amended to state that being a felon-in-pos­session was not a crime of violence for career offender purposes.  Thus, under the 1989 guidelines, defendant’s base offense level was 12, but he qualified as a career offender.  Under the 1992 guidelines, his base offense level was 24, but was not a career offender.  Both calculations resulted in a guideline range of 100 to 125 months.  The 7th Circuit held the judge’s comments left no doubt that, had he applied the 1991 guidelines, he would still have imposed the statutory maximum 120-month sentence.  The court rejected a piecemeal application of the two guideline versions.  Contrary to the Sentencing Com­mission, the amendment to the §4B1.1 com­mentary was not merely a clarification, but a substantive change to the law.  U.S. v. Lykes, 999 F.2d 1144 (7th Cir. 1993).

 

7th Circuit permits use of later fraud guideline to guide upward departure. (131) Defen­dant could not be sentenced under the version of 2F1.1 in effect on the date of sen­tencing because it called for a higher offense level than the version in effect on the date of defendant’s offense.  However, the district court de­parted upward from the offense level under the ear­lier version by three levels, equaling the offense level under the new ver­sion of 2F1.1.  The 7th Circuit found the de­parture justified by the sentence that would have been imposed under the newer ver­sion, and that reliance on the new ver­sion did not violate the ex post facto clause.  U.S. v. Boula, 997 F.2d 263 (7th Cir. 1993).

 

7th Circuit says 1989 arson guideline did not ade­quately cover defendant’s crime. (131) Defendant hired several men to burn down his com­petitor’s restaurant.  The 7th Circuit affirmed an up­ward de­parture, finding that the 1989 ver­sion of sec­tion 2K1.4 did not adequately address this crime.  Unlike most arsons, defendant did not destroy his own property to collect insurance proceeds.  Instead he tried to put others out of business.  He endan­gered others and at least temporar­ily ruined the rep­utation of his competitors, who were initially sus­pected by police of set­ting the fire.  It was proper to use the 1990 amendment to section 2K1.4 as a framework for the departure.  In this amend­ment, the Sentencing Commission acknowledged that arson was a more serious crime than it thought in the past.  There was no ex post facto violation, since the court did not retroactively apply the 1990 amendment, but instead used the 1989 guidelines and then properly departed upward.  The fact that the court did not similarly depart upward for a co-defendant was not an abuse of discretion.  U.S. v. Willey, 985 F.2d 1342 (7th Cir. 1993).

 

7th Circuit finds no plain error in applying old guideline but refuses to decide ex post facto issue. (131) Defendant committed his firearm offense in January 1991, but was sentenced in 1992.  Effec­tive November 1, 1991, section 2K2.1(a)(2) was amended to increase the base offense level for defen­dant’s offense from 12 to 14.  Nonetheless, without discussion, the district court and all the par­ties as­sumed the pre-November 1991 guide­lines applied.  The 7th Circuit found no plain error, but refused to determine whether the district court’s action was re­quired by the ex post facto clause.  The court noted that other circuits have held that the ex post facto clause prohibits application of a revised guideline when it imposes a more severe penalty than the ver­sion in effect on the date of the offense.  7th Circuit caselaw has sent inconsistent signals on the question.  The panel suggested that this issue should be ad­dressed as soon as possible, but this case was not an appropriate vehicle since the issue was not briefed by either party.  U.S. v. Schnell, 982 F.2d 216 (7th Cir. 1992).

 

7th Circuit holds that applying amended sec­tion 924(c) violated ex post facto clause. (131) In August, 1988, when defen­dant committed the in­stant robberies, section 924(c) carried a ten-year mandatory sentence for a sec­ond firearms offense.  That provision was amended November 1988 to provide for a 20-year sentence, and defendant was sen­tenced under this amended pro­vision.  On appeal, the 7th Circuit re­versed, holding that applying the amended statute to defendant violated the ex post facto clause.  The amended statute clearly disadvantaged de­fendant by doubling the mandatory portion of his sentence.  Dicta in U.S. v. Bader, 956 F.2d 708 (7th Cir. 1992) suggesting that retroactive appli­cation of the guidelines may not violate the ex post facto clause, was not relevant to this case.  U.S. v. Wilson, 960 F.2d 48 (7th Cir. 1992).

 

7th Circuit suggests that applying amended guide­line increasing range would not vi­olate ex post facto clause. (131) The district court sentenced defendant under the guidelines in effect on the date he committed the offense, rather than on the date he was sentenced.  The 7th Circuit did not de­termine whether this was proper because the gov­ernment did not appeal this is­sue.  However, the court stated its belief that an amendment to the guidelines which increases a defen­dant’s guideline sentence does not violate the ex post facto clause, since it does not change the statutory punishment that a defendant faces as a result of his crime.  “[A] change in the sentencing guidelines is no different from . . . the institution of a get-tough policy under which the prosecutor no longer accepts pleas to lesser offenses, or the appointment of a new judge who favors longer sentences, or a change in the guidelines for parole . . . or a decision by the Presi­dent to cease commuting the sentences of a class of felons.  All of these may increase the time a criminal spends in prison without transgressing the ban on ex post facto laws.”  U.S. v. Bader, 956 F.2d 708 (7th Cir. 1992).

 

7th Circuit rejects ex post facto challenge because guideline section 1B1.2(d) is merely clarification of existing law. (131) As a result of two differ­ent efforts to burn down a building, defendant pled guilty to one count of conspiracy to commit arson.  Relying upon guideline section 1B1.2(d), the district court deter­mined that defendant’s offense level should be adjusted upward as if he had been con­victed of a separate count of con­spiracy for each of­fense that he conspired to commit, and that those two convictions should not be grouped under guide­line sec­tion 3D1.2.  Section 1B1.2 was adopted after the date of defendant’s offense.  Nonetheless, the 7th Circuit rejected defendant’s ex post facto challenge, ruling that section 1B1.2(d) was enacted to clarify existing procedure un­der the guide­lines, and was not a substantive change.  U.S. v. Golden, 954 F.2d 1413 (7th Cir. 1992).

 

7th Circuit holds that prior to amendment, obstruction precluded credit for acceptance of responsibility. (131) The district court gave the defendant credit for accep­tance of re­sponsibility even though he obstructed justice.  The 7th Cir­cuit reversed noting that prior to the recent amendment to application note 4 of § 3E1.1, a finding of obstruc­tion of jus­tice under § 3C1.1 pre­vented a reduction for ac­ceptance of responsibility.  The new amendment states “the purpose of this amendment [is] to provide for extraordi­nary cases in which adjust­ments under both § 3C1.1 and § 3E1.1 are appropriate.”  The 7th Circuit held that “this language indicates that prior to the amendment, the guidelines did not provide for extraordinary cases for mu­tual adjust­ments where acceptance of respon­si­bil­ity and obstruc­tion of justice were appropriate.”  U.S. v. Reynolds, 900 F.2d 1000 (7th Cir. 1990).

 

8th Circuit finds no Congressional intent to apply § 3E1.1 amendment retroactively. (131) Defendant was sentenced in January 1990.  He subsequently argued that he should receive the benefit of a November1, 1992 amendment to § 3E1.1 which provided for an additional one level acceptance of responsibility reduction.   He acknowledged that the court had previously held that the amendment was not retroactive, because it was not listed in § 1B1.10.  However, he claimed that § 1B1.10 was contrary to Congressional intent.  The 8th Circuit rejected the argument, ruling that the language of 28 U.S.C. § 994(u) shows that the retroactivity decision was left to the Sentencing Commission’s discretion.  U.S. v. Hernandez, 18 F.3d 601 (8th Cir. 1994).

 

8th Circuit remands to apply statute and guidelines in effect at time of fraud. (131) Defendant pled guilty to making false statements to a financial institution in violation of 18 U.S.C. § 1014.  The 8th Circuit held that the district court erred in applying the amended version of section 1014 and the guidelines in effect when defendant was sentenced.  The version of 18 U.S.C. § 1014 that was in effect on the date of the offense provided for a maximum sentence of two years’ imprisonment.  The revised version resulted in a guideline range of 27 to 33 months.  Application of the amended version of section 1014 and the guidelines, which resulted in punishment greater than that which existed at the time the offense was committed, violated the ex post facto clause.  Kok v. U.S., 17 F.3d 247 (8th Cir. 1994).

 

8th Circuit finds use of amended meth guideline violated ex post facto clause. (131) Defendant argued that he should have been sentenced under the 1987 guidelines in effect when he committed his offense.  The 1992 guidelines changed the method for determining methamphetamine quantity so that his sentence was harsher than under the 1987 guidelines.  The 8th Circuit found that this violated the ex post facto clause and vacated the sentence.  Under the 1987 version of section 2D1.1(c), the quantity was determined by the weight of the entire substance or mixture containing methamphetamine.  Under the 1992 version, the quantity is determined by either the weight of the entire substance or the “actual” weight of the methamphetamine contained in the substance or mixture.  Under the 1992 guidelines, defendant had an offense level of 30, while under the 1987 guidelines, he would have had an offense level of 26.  U.S. v. Behler, 14 F.3d 1264 (8th Cir. 1994).

 

8th Circuit says LSD amendment may be applied retroactively. (131) After defendant was sentenced, U.S.S.G. section 2D1.1(c) was amended on November 1, 1993, to provide that each dose of LSD should be treated as weighing 0.4 milligrams.  Applying the amendment to defendant would have made him eligible for a shorter prison sentence.  The 8th Circuit held that the district court had discretion to apply the amendment retroactively.  The case was remanded to permit the district court to exercise its discretion.  U.S. v. Holmes, 13 F.3d 1217 (8th Cir. 1994).

 

8th Circuit remands to determine whether LSD amendment should be applied retroactively. (131) The 8th Circuit rejected defendant’s claim that the district court should have excluded the weight of the car­rier medium, in this case blotter paper, from the weight of the LSD.  Circuit and Supreme Court precedent require consideration of the carrier medium.  The court also upheld the validity of Amendment 488, effective Novem­ber 1, 1993, which amends section 2D1.1(c) to provide that the weight of LSD for sen­tencing purposes is to be determined by treating each dose of LSD as weighing 0.4 milligrams.  Section 1B1.10 does not man­date that Amendment 488 be applied retroac­tively, but instead gives the sentencing court discretion to so apply it.  The case was re­manded to permit the district court to con­sider whether to apply Amendment 488 retroactively to defendant.  U.S. v. Coohey, 11 F.3d 97 (8th Cir. 1993).

 

8th Circuit reverses because date of plea agreement was used to determine applica­ble guidelines. (131) Defendant sought a three-level reduction for acceptance of re­sponsibility for notifying the government of his intent to plead guilty before the govern­ment began to prepare for trial.  The district court granted a two-level reduction, but re­jected the three-level reduction because de­fendant pled guilty before the effective date of the amendment which created that reduction.  The 8th Circuit reversed, holding that the date of sentencing, not the date of the plea, determines the applicable guidelines.  The three-level reduction in section 3E1.2(b)(2) was in full force and effect when defendant was sentenced, and therefore the district court should have considered whether defen­dant met the criteria for the additional reduc­tion.  U.S. v. Cassidy, 6 F.3d 554 (8th Cir. 1993).

 

8th Circuit refuses to apply new “listed chemical” guideline retroac­tively. (131) Defendant ar­gued that he should be re­sentenced using the new “listed chemical” guideline, §2D1.11 by reason of 18 U.S.C. §3582(c)(2), which authorizes a dis­trict court to reduce a sentence in certain circum­stances where a sentencing range has been subse­quently reduced by the Commission.  The 5th Circuit rejected the re­quest.  The amendment that added section 2D1.11 is not listed in sec­tion 1B1.10(d) and therefore a reduc­tion in the defen­dant’s term of imprisonment under section 3582(c) was not consistent with this policy statement.  U.S. v. Wilson, 997 F.2d 429 (8th Cir. 1993).

 

8th Circuit says “super-acceptance” of responsibil­ity amendment is not retroactive. (131) Effec­tive November 1, 1992, §3E1.1 was amended to in­crease from 2 to 3 the number of levels for available for acceptance of responsibility.  Defendant, who had already been sentenced when the amendment took effect, filed a motion to modify his sentence, claiming that he quali­fied for the extra reduction.  The 8th Cir­cuit disagreed.  Since the amendment was not listed in 1B1.10(d) as among those that should be applied to defendants already sen­tenced, defendant cannot benefit from it.  U.S. v. Dowty, 996 F.2d 937 (8th Cir. 1993).

 

8th Circuit retroactively applies clarifying amend­ment to bribery guideline. (131) The 1990 version of guideline section 2C1.1(b)(2)(B) provides for an enhancement “if the offense involved a bribe for the pur­pose of influencing an elected official.”  The 1991 version of this section changes the word “bribe” to “payment.”  Defendant contended that un­der the 1990 version, the enhance­ment applied only when the offense of bribery was involved.  Since his offense involved ex­tortion, he argued that it violated the ex post facto clause to enhance his sentence un­der this section.  The 8th Circuit rejected this inter­pretation, ruling that the 1991 amend­ment merely clarified the mean­ing of the 1990 version.  The en­hancement applied to defendant’s extortion offense under either version.  U.S. v. Loftus, 992 F.2d 793 (8th Cir. 1993).

 

8th Circuit says use of amended firearm guideline would violate ex post facto clause. (131) On July 1, 1991, defendant possessed a firearm.  On November 19, 1991, she pled guilty to being a felon in pos­session of a firearm in violation of 18 U.S.C. section 922(g)(1).  Effective November 1, 1991, the firearms guidelines were amended.  The use of the new guidelines would have generated a guideline range of 84 to 125 months, while the old guidelines resulted in a range of 24 to 30 months.  The 8th Cir­cuit upheld the application of the old guidelines in effect when defendant committed her offense.  The sen­tencing guidelines are laws within the meaning of the ex post facto clause.  That clause is violated if a de­fendant is sentenced under guidelines that are harsher than the guidelines in effect at the time the crime is committed.  U.S. v. Bell, 991 F.2d 1445 (8th Cir. 1993).

 

8th Circuit rules that defendant waived ob­jection to application of amended guide­lines. (131) Section 2F1.1(b)(1)(J) of the 1987 guidelines estab­lishes a nine-level en­hancement if the value to be re­ceived from a bribe is between $1,000,001 and $2,000,000.  Defendant’s offense level was computed according to the 1989 guidelines, which provide for an 11-level increase when the benefit to be received is greater than $800,000 and less than $1,500,000.  The 8th Circuit ruled that because de­fendant did not object to the apparently erroneous retroactive appli­cation of the 1989 guidelines, the error was waived.  The apparent error did not re­sult in a miscarriage of justice and thus was not plain error.  U.S. v. Ziglin, 964 F.2d 756 (8th Cir.  1992).

 

8th Circuit finds district court did not er­roneously apply recent guidelines amend­ments to defendant. (131) The 8th Circuit rejected defendant’s claim that the district court erroneously ap­plied the 1989 amend­ments to the sen­tencing guidelines to his con­spiracy conviction.  The initial draft of the presen­tence report contained an en­hancement based on a section added to the guidelines by the 1989 amend­ments.  The conduct in question was concluded by April 30, 1989, before the effective date of the amendments.  After defen­dant’s objection, the pre­sentence report was changed to reflect this fact, al­though it did state that this issue might be grounds for an upward departure.  The district court, how­ever, did not depart upward, instead granting a downward depar­ture.  U.S. v. Ziglin, 964 F.2d 756 (8th Cir.  1992).

 

8th Circuit rejects piecemeal application of prior ver­sion of guidelines. (131) Defendant was convicted of selling methamphetamine near a school.  Prior to November 1, 1989, § 2D1.3(a)(2)(B) required doubling the base of­fense level in such a case.  At that time, methamphetamine was not listed separately in § 2D1.1, so the offense level had to be generated from the drug-equivalency table.  After defen­dant’s crime, the sentencing com­mission changed both provi­sions, with the net effect of increasing the base offense level.  Be­cause the net sentencing range under the guidelines in effect when defendant committed the crime was less than under the amended guidelines, the district court used the prior ver­sion of the guidelines.  On ap­peal, defen­dant sought to maintain the prior favorable drug-equivalency provision, while obtaining the ben­efit of the favorable change in § 2D1.3(a)(2)(B), i.e., no doubling in offense level.  The 8th Circuit rejected this piecemeal application of the guidelines.  The two provi­sions “move in concert,” and the old version of § 2D1.3(a)(2)(B) must be applied with the old version of § 2D1.1. U.S. v. Lenfesty, 923 F.2d 1293 (8th Cir. 1991), overruling on other grounds recognized by U.S. v. Search, 233 F.3d 1096 (8th Cir. 2000).

 

8th Circuit refuses to apply amended guide­line where it would increase offense level. (131) Defendants’ offenses were committed prior to November 1, 1989. However, they were not sen­tenced until after this date, and the district court applied the guideline amendments that be­came effective November 1, 1989.  The 8th Circuit re­versed, finding that since the result of the amendments would be to increase de­fendants’ offense level, sentenc­ing under the amended guidelines would violate the ex post facto clause.  The case was re­manded for resen­tencing under the prior ver­sion of the guidelines.  U.S. v. Swanger, 919 F.2d 94 (8th Cir. 1990).

 

8th Circuit holds that prior version of § 2B1.2(b)(4) authorized increase in offense level for broad range of or­ganized criminal ac­tivity. (131) De­fendants pled guilty to posses­sion of stolen goods, and received a sentence en­hancement under guidelines § 2B1.2(b)(4) since the offense involved “organized criminal activity,” i.e. “operations such as car theft rings or chop shops, where the scope of the activity is clearly significant but difficult to ascertain.”  After defendant was sentenced, § 2B1.2(b)(4) was amended to pro­vide for an increase in offense level only if “the offense involved an organized scheme to receive stolen vehicles or vehicle parts.”  The 8th Circuit found that it was proper to apply the version of the guidelines in effect when defendant was sentenced.  The revision signifi­cantly limited the appli­cation of the section.  Therefore, the increase in defendant’s offense level under § 2B1.2(b)(4) was proper.  Judge McMillian disagreed with this conclu­sion, arguing that the purpose of the amend­ment was to clarify that “organized criminal activ­ity” under § 2B1.2(b)(4) was limited to schemes to receive stolen vehicles and vehi­cle parts.  U.S. v. Russell, 913 F.2d 1288 (8th Cir. 1990).

 

8th Circuit applies amendments to guidelines in effect on date defendant was sentenced. (131) Defendant com­mitted his offenses be­tween October 1987 and Decem­ber 1988.  The government argued that the June 15, 1988 guide­lines applied.  The 4th Circuit rejected the argu­ment, noting that 18 U.S.C. § 3553(d) specifically requires the court to con­sider “the kinds of sentence and the sentencing range . . . that are in effect on the date the de­fendant is sentenced.”  Since defen­dant was sentenced on November 21, 1989, the amend­ments to the guide­lines effective November 1, 1989, applied.  U.S. v. Manuel, 912 F.2d 204 (8th Cir. 1990).

 

8th Circuit holds that defendant’s sentence should be re­viewed in light of guidelines in ef­fect at time defen­dant was sentenced. (131) Defendant argued that the dis­trict court im­properly denied a reduction for accep­tance of responsibility because he was a career of­fender.  Under the guidelines in effect at the time defendant was sentenced, ca­reer offend­ers could not receive such a re­duction.  How­ever, an amendment permitting career offend­ers to receive such reductions became effective while the case was on appeal.  The 8th Circuit held that defendant’s sentence must be re­viewed in light of the guidelines in effect at the time he was sentenced, and therefore, a reduc­tion for acceptance of re­sponsibility was un­available.  U.S. v. Williams, 905 F.2d 217 (8th Cir. 1990).

 

8th Circuit holds that amendment to career offender guide­line does not apply to prior cases. (131) Effective Nov. 1, 1989, U.S.S.G. § 4B1.1 was amended to permit ca­reer offenders to receive a two point reduction for accep­tance of responsibility under 3E1.1.  However, prior to that time a number of cir­cuits, including the 8th Circuit, held that the acceptance of responsibility provi­sion did not apply to ca­reer offenders.  The defendant here committed his offense and was sentenced be­fore the proposed amendment to U.S.S.G. 4B1.1 was pub­lished in the federal register.  The 8th Circuit ruled that it was bound to fol­low prior 8th Cir­cuit precedent and affirmed the denial of a two point reduc­tion for accep­tance of responsibility.  The court acknowl­edged how­ever, that “it is seemingly arbitrary to deny [defendant] a deduction that other ca­reer offenders may now receive.  U.S. v. Green, 902 F.2d 1311 (8th Cir. 1990).

 

9th Circuit says application note merely clarified meaning of career offender guideline. (131) Defendant argued that application note 3 of the career offender guideline, 4B1.2, could not be applied to him without violating the ex post facto clause.  The 9th Circuit rejected the argument, relying on U.S. v. Carrillo, 991 F.2d 590, 592-93 (9th Cir.) cert denied, 114 S.Ct. 231 (1993).  That case held that note 3 did not substantively alter any guideline provision, but merely clarified that a conviction for an offense committed prior to age 18 is an adult conviction if it is classified as an adult conviction under the laws of the jurisdiction in which the defendant was convicted.  Therefore, it could be applied retroactively without violating the ex post facto clause.  U.S. v. Quinn, 18 F.3d 1461 (9th Cir. 1994).

 

9th Circuit finds 1992 “relevant conduct” amendment did not change scope of conspirator liability. (131)  Defendant pled guilty to conspiracy to possess and possession of cocaine with intent to distribute.  The district court held defendant responsible for 7.3 kilos of cocaine under the “relevant conduct” guideline, § 1B1.3.  Defendant argued that it was error to apply the pre-November, 1992, version of that guideline in determining his liability for the acts of co-conspirators.  The Ninth Circuit rejected this argument, finding that the 1992 amendments did not change the scope of liability for the acts of co-conspirators.  Under both versions of §1B1.3(a), liability extends to reasonably foreseeable acts in furtherance of the charged conspiracy.  The district court adopted the presentence report’s conclusion that the co-conspirators’ sales were reasonably foreseeable and in furtherance of the conspiracy.  U.S. v. Valencia, 15 F.3d 149 (9th Cir. 1994).

 

9th Circuit says guidelines in effect at resentencing will apply on remand. (131) In remanding defendant’s case to apply the acceptance of responsibility reduction, the Ninth Circuit directed the district court to resentence in accordance with the guidelines in effect at the time of resentencing.  Therefore in addition to the two level reduction for acceptance of responsibility under the old guidelines, defendant would be eligible for the extra one level reduction that took effect after the original sentencing but before the remand.  U.S. v. McKinney, 15 F.3d 849 (9th Cir. 1994).

 

9th Circuit says court must apply policy statement in effect on the date of sentenc­ing. (131) Normally, a district court is to ap­ply the version of the sentencing guidelines in effect on the date of sentencing.  The 9th Cir­cuit held that the same rule obtains for policy statement, citing U.S. v. Baclaan, 948 F.2d 628, 630 n.1; 18 U.S.C. section 3553(a)(5).  Of course, where amended versions of the sentencing guidelines are ex post facto, the defendant must be sentenced in accordance with the guidelines in effect at the time of the offense.  U.S. v. Schram, 9 F.3d 741 (9th Cir. 1993).

 

9th Circuit says three level credit for acceptance of responsibility is not retroactive. (131) When defendant was sentenced on March 9, 1992, the court gave him a two level reduction for acceptance of responsibility under guideline section 3E1.1.  On November 1, 1992, that section was amended to permit an additional one level reduction for acceptance of responsibility, if the defendant “assisted authorities in the investigation or prosecution of his own misconduct.”  On appeal, defendant argued that the amendment should be applied retroactively.  The 9th Circuit rejected the argument, noting that the amendment was not specifically listed in guideline section 1B1.10(d) which lists the amendments that are retroactive.  Thus the court agreed with the Second Circuit in U.S. v. Rodriguez, 989 F.2d 583, 587-88 (2nd Cir. 1993), which refused to apply amended section 3E1.1 retroactively because it was not listed in section 1B1.10(d).  U.S. v. Cueto, 9 F.3d 1438 (9th Cir. 1993).

 

9th Circuit upholds consecutive sentence for related conviction despite later amendment to 5G1.3. (131) Defendant ar­gued that U.S.S.G. section 5G1.3 required the court to impose a sentence concurrent to his sentence for the Texas conviction, but adjusted to reflect the combined total of drugs for which he was convicted in both cases.  The November 1, 1990 guidelines in effect when defendant’s sentence was im­posed authorized concurrent or consecutive sentences, and the district court chose to sen­tence consecutively.  Although section 5B1.3 was amended on November 1, 1991 to re­quire concurrent sentencing under the cir­cumstances of this case, the 9th Circuit held that the amendment “does not retroactively invalidate the sentence imposed on this de­fendant.” U.S. v. Conkins, 9 F.3d 1377 (9th Cir. 1993).

 

9th Circuit says ex post facto clause pro­hibited use of amended definition of crime of violence. (131) The 1988 Guidelines in ef­fect when appellant committed his crime de­fined “crime of violence” for career offender purposes by reference to 18 U.S.C. §16.  Ef­fective November 1, 1989, §4B1.2(1) was amended to eliminate all reference to 18 U.S.C. § 16.   The amendment shifted the emphasis from an analysis of the “nature” of the crime charged to an analysis of the ele­ments of the crime charged or whether the actual “conduct” of the defendant presented a serious risk of physical injury to another.  Because applying the guidelines in effect at the time of sentencing would result in a harsher sentence, the government conceded that the ex post facto clause prohibited using the November 1, 1989 guidelines. U.S. v. In­nie, 7 F.3d 840 (9th Cir. 1993).

 

9th Circuit says amendment precluding departure for lack of youthful guidance cannot be applied retroactively. (131) Ef­fective November 1, 1992, the Sentencing Commission added guideline section 5H1.2 to declare that “[l]ack of guidance as a youth and similar circumstances indicating a disad­vantaged upbringing are not relevant grounds for imposing a sentence outside the applica­ble guideline range.”  The Commission did not say that the amendment was intended to be clarifying in nature, and the 9th Circuit held that it was a substantive change.  Thus, the court held that the new prohibition against departures based on lack of youthful guidance could not be applied to this defen­dant without violating the ex post facto clause.  The sentence was vacated and the case was remanded to the district court to permit the judge to consider whether to de­part downward for youthful lack of guidance. U.S. v. Johns, 5 F.3d 1267 (9th Cir. 1993).

 

9th Circuit gives no weight to later amendment where unclear that amend­ment was clarification. (131) Citing U.S. v. Martinez, 946 F.2d 100, 102 (9th Cir. 1991), the 9th Circuit reiterated that where the “circumstances surrounding the relevant guideline and its amendment fail to make clear that the guideline’s purpose was merely to clarify rather than to alter preexisting law, we will confer no weight on the subsequent amendment.”  Accordingly the court refused to give any weight to the 1991 amendment to the commentary to section 4A1.2(a)(2) which provided that prior sentences are not consid­ered related “if they were for offenses that were separated by an intervening arrest.”  U.S. v. Bishop, 1 F.3d 910 (9th Cir. 1993).

 

9th Circuit applies clarifying amendment on ap­peal. (131) Two defendants raised identical is­sues on appeal, one of whom was sentenced in 1990 and the other in 1992.  The Ninth Circuit applied the 1991 amended version of the guidelines in both cases finding the amendments were merely clarifications of the meaning of the guidelines.  The applicable amendments did not add to or alter the sub­stantive meaning of the guidelines and in fact only applied to the commentary.  U.S. v. Car­rillo, 991 F.2d 590 (9th Cir. 1993).

 

9th Circuit says new guideline for “listed chemi­cals” is not retroactive. (131) The guidelines were amended effective November 1, 1991, to add guideline section 2D1.11.  This provision involves unlawfully distribut­ing, importing, exporting or pos­sessing a listed chemical. The defendant ar­gued that his case fell into this category and that his base of­fense level should be reduced.  The 9th Circuit re­jected the argument, noting that the guidelines have not made section 2D1.11 retroactive.  See U.S.S.G. section 1B1.10.  U.S. v. Foster, 985 F.2d 466 (9th Cir. 1993), amended, 17 F.3d 1256 (9th Cir. 1994).

 

9th Circuit invokes “one book” rule; pre­vents choosing among favorable versions of guidelines. (131) Defendant, a felon, pos­sessed a firearm on October 2, 1990.  Under the November 1, 1989 version of the guide­lines, his base offense level was twelve, U.S.S.G. section 2K2.1(a)(2) (November 1, 1989).  On November 1, 1991, the base of­fense level was raised to twenty-four.  At sen­tencing, the court ruled that applying the new guideline would vi­olate the ex post facto clause.  U.S. Const. art. 1, sec­tion 9, cl. 3.  Therefore the court set the base offense level at twelve.  Since it had to rely on the 1989 guidelines for the base offense level, the dis­trict court also applied the 1989 version of 5G1.3 and imposed consecutive sentences.  On appeal, defendant argued that the court should have applied the 1991 version of 5G1.3, which restricts consecu­tive sentenc­ing.  The 9th Circuit rejected the argu­ment, holding that sentences should be determined under one set of guidelines rather than piecemeal.  The court noted that the Com­mission itself has taken this position in a new November 1, 1992 policy statement 1B1.11(b).  U.S. v. Warren, 980 F.2d 1300 (9th Cir.  1992).

 

9th Circuit says court has discretion in applying retroactive currency guideline. (131) Defen­dant was con­victed of making a false customs decla­ration regarding currency he was bring­ing into the United States.  He was sen­tenced under section 2S1.3 before the effective date of Amendment 379 which modified section 2S1.3 and created a new section for offenses involving the failure to file currency reports.  The case was remanded to the district court to de­termine whether or not to adjust the sentence in light of the amend­ment.  Section 1B1.10(a) does not man­date the use of the lesser enhancement but per­mits discretion to use the amended guideline.  The court concurred with the discretionary approach to this is­sue adopted in U.S. v. Connell, 960 F.2d 191, 197 (1st Cir. 1992).  U.S. v. Wales, 977 F.2d 1323 (9th Cir. 1992).

 

9th Circuit holds that amendment to 3B1.1 was a mere “clarification” and was therefore retroactive. (131) Effec­tive November 1, 1990, the introductory com­mentary to Part B of Chapter 3 of the Guide­lines was amended to state that the defen­dant’s role in the offense is to be based on all relevant conduct, and not solely on the count of conviction.  Defendant argued that using this com­mentary to calculate his sentence for crimes committed before November 1990 vi­olated the ex post facto clause.  Relying on prior circuit precedent, the 9th Circuit re­jected the argument, stat­ing that the introduc­tory commentary “merely clarified” section 3B1.1, and therefore may be applied retro­spectively.  U.S. v. Scarano, 975 F.2d 580 (9th Cir. 1992).

 

9th Circuit rejects retroactive application of amendment allowing career offenders credit for ac­cepting responsibility. (131) Under 18 U.S.C. section 3553(a)(4) and (5), the guidelines to be applied by the sentenc­ing court are those that “are in effect on the date the defendant is sentenced.”  After defendant was sen­tenced, section 4B1.1 was amended to permit career of­fenders to be given a two point reduction for accep­tance of responsi­bility.  The defendant here argued that this amendment should be held to constitute a clarification of the Sentencing Commission’s previous intent.  Rely­ing on U.S. v. Mooney­ham, 938 F.2d 139, 140 (9th Cir.), the 9th Circuit rejected the argument, noting that it had been “squarely re­jected” in Mooneyham.  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 states that the applicable pol­icy state­ments are those in effect on the date of sentencing. (131) The govern­ment argued that the district court was not re­quired to follow section 7B1.4 because the dates of the offense of con­viction and each positive urine test predated the effec­tive date of that policy statement, November 1, 1990.  The 9th Circuit rejected the argument, stating that “the applica­ble policy state­ments are those which are in effect on the date of sen­tencing.”  See 18 U.S.C. section 3553(a)(5).  U.S. v. Ba­claan, 948 F.2d 628 (9th Cir. 1991).

 

9th Circuit gives amendment no weight where it simply changed existing law, rather than clarifying earlier law. (131) The 9th Circuit held that a subse­quent amendment “may be entitled to substantial weight in construing earlier law when it plainly serves to clarify rather than change the existing law.”  In this case how­ever, “the circumstances sur­rounding the relevant guideline and its amendment failed to make clear that the amendment’s purpose was merely to clarify rather than to alter pre-ex­isting law.  Therefore the court gave “no weight” to the subsequent amendment in in­terpreting the prior guideline.  U.S. v. Mar­tinez, 946 F.2d 100 (9th Cir. 1991).

 

9th Circuit holds amendment permitting ac­ceptance of re­sponsibility for career offenders is not retroactive. (131) At the time defen­dant was sentenced, a ca­reer offender under § 4B1.1 could not obtain a two-point re­duction for acceptance of responsibility under § 3E1.1.  After he was sentenced, effec­tive November 1, 1989, § 4B1.1 was amended to permit career offenders to be given credit for acceptance of responsibility.  On appeal, de­fendant argued that this amend­ment should apply to him.  The 9th Circuit re­jected the argument, ruling that the lan­guage of the amendment indicated it was not in­tended to have retroactive effect and noting that it was not included in the list of amend­ments that are to be given retroactive effect in guideline § 1B1.10(d).  The court ob­served that ap­plying the version of the guide­lines in effect at the time of the appeal rather than at sentencing, “would create an incen­tive for defendants to delay appeals or take unnec­essary ap­peals in order to preserve the possi­bility that a future amendment, not listed in § 1B1.10, would nevertheless apply to them.”  U.S. v. Mooneyham, 938 F.2d 139 (9th Cir. 1991).

 

9th Circuit requires resentencing under guidelines in effect at the time of the offense. (131) In ordering resen­teincing for an armed career criminal under 18 U.S.C. § 924(e) the 9th Circuit ruled that the district court in re­sentencing should consider the guidelines in effect at the time of the offense and not the re­cently promul­gated amended guideline.  The court noted that in Miller v. Florida, 482 U.S. 423 (1987), the court held that retroactive applica­tion of revised guidelines violates the ex post facto clause.  The court noted that effec­tive Nov. 1, 1990, guideline 4B1.4 had been adopted with respect to sentence enhance­ments under 18 U.S.C. § 924(e).  U.S. v. Sweeten, 933 F.2d 765 (9th Cir. 1991).

 

9th Circuit holds that amendment which re­stored law to that in ef­fect when pe­titioner was convicted was not ex post facto. (131) At the time of petitioner’s convic­tion, 18 U.S.C. § 4206 permitted the Parole Commis­sion to set his parole date.  Effective November 1, 1987, the Sentenc­ing Re­form Act required the Parole Com­mission to set release dates for in­dividuals who will be in its juris­diction on Oc­tober 31, 1992 “within the range that applies to the prisoner un­der the applicable parole guideline.”  On December 7, 1987, Congress amended the Act to re­quire the Parole Com­mission to set such release dates “pursu­ant to § 4206.”  The 9th Circuit rejected the pe­titioner’s ar­gument that ap­plying the December 7 amend­ment to him would violate the ex post facto clause.  Because § 4206 was ap­plicable at the time of the defendant’s sen­tencing, appli­cation of the amendment would not disadvantage him, but would “merely maintain the status quo.”  Tripati v. U.S. Parole Commission, 872 F.2d 328 (9th Cir. 1989).

 

10th Circuit upholds departure based upon analogy to armed career criminal guideline. (131) Defendant was classified as an armed career criminal subject to a manda­tory minimum 15-year sentence under 18 U.S.C. section 924(e).  At the time he commit­ted his offense, the guidelines did not yet con­tain section 4B1.4, the armed career criminal provision.  Thus, absent the mandatory minimum, defendant would have had a guideline range of 18 to 24 months.  The 10th Circuit approved an upward departure from the mandatory minimum based upon an analogy to the armed career criminal guide­line.  The guidelines’ “omission” of an armed career criminal category was a proper grounds for departure.  The degree of depar­ture, determined with reference to what de­fendant’s guideline range would be under sec­tion 4B1.4, was reasonable.  There was no ex post facto violation.  It was clear that the dis­trict court did not apply section 4B1.4, but merely used it as a benchmark to test the reasonableness of its degree of departure. U.S. v. Tisdale, 7 F.3d 957 (10th Cir. 1993).

 

10th Circuit refuses to apply amended ac­ceptance of responsibility credits retroac­tively. (131) After defendant was sentenced, §3E1.1 was amended to permit a three level reduction for acceptance of re­sponsibility un­der certain circumstances.  The 10th Circuit held the amendment could not be applied retroac­tively, because the Commission did not in­clude it in §1B1.10 among the amend­ments that are retroactive.  U.S. v. Avila, 997 F.2d 767 (10th Cir. 1993).

 

10th Circuit rejects characterizing amendment to criminal history as merely a clarification. (131) Sec­tion 4A1.2(c)(1), in ef­fect at the time defendant commit­ted his of­fense, pro­vided that local ordinance violations are excluded from a defendant’s criminal his­tory ex­cept under cer­tain limited circum­stances.  Effective Novem­ber 1990 this provi­sion was amended to pro­vide that local or­dinance violations which are also criminal of­fenses under state law are not excluded from a defen­dant’s criminal history.  The 10th Cir­cuit rejected the sen­tencing commission’s characteriza­tion of this amendment as merely clarification.  An amendment which changes the language of a guide­line is substan­tive un­less it does no more than “clarify a meaning that was fairly to be drawn from the original version.”  Given the plain meaning of the pre-amendment ver­sion under which all munici­pal ordinance violations were excluded, the amendment made a substantive change in the law and was not a clarification of pre-existing law.  Since it would vio­late the ex post facto clause to sentence de­fendant under the amended guideline, the previous ver­sion of the guideline was applicable.  U.S. v. Mondaine, 956 F.2d 939 (10th Cir. 1992).

 

10th Circuit applies prior version of § 2D1.1(b)(1) to avoid ex post facto problem. (131) Guideline § 2D1.1(b)(1) enhances a defendant’s sen­tence if the defen­dant pos­sessed or used a firearm during the course of a drug trafficking crime.  The 10th Circuit found it was necessary to apply the 1988 version of guideline § 2D1.1(b)(1) in effect at the time defendant committed his drug crimes in order to avoid an ex post facto problem.  It agreed with other circuit courts that the 1988 version of the guideline required a finding of scienter in order to enhance a defendant’s sen­tence, while the amended guideline, effective in November of 1989, deleted this requirement.  “Given the decreased burden of the govern­ment, we have little trouble concluding that retroactive application of the changed guide­line would disad­vantage defendant in this case.”  U.S. v. Underwood, 938 F.2d 1086 (10th Cir. 1991).

 

10th Circuit applies 1987 version of guidelines to firearm offense to avoid ex post facto problems. (131) The 10th Circuit upheld the district court’s application of the 1987 version of the guidelines to defen­dant’s firearm offense in order to avoid an ex post facto problem.  The 1987 version of guideline § 2K2.1(a) provided a base offense level of nine for re­ceipt of firearms by prohibited persons.  There was no increase based on the number of firearms involved.  In 1989, the section was amended to reduce the base offense level to only six, but § 2K2.2 was added to autho­rize an increase in offense level based on the number of firearms. If the 1989 guideline could have been applied, it would have resulted in an offense level of nine or 10.  Therefore the district court did not err in using a base offense level of nine under the 1987 version.  U.S. v. Elias, 937 F.2d 1514 (10th Cir. 1991).

 

11th Circuit applies guidelines in effect on date defendant was arrested in possession of firearm. (131) On November 20, 1990, de­fendant was arrested in possession of an un­registered sawed-off shotgun.  The 11th Cir­cuit termed “plainly without merit” defen­dant’s contention that he should have been sentenced under the guidelines in effect prior to the November 1, 1990, amendment to sec­tion 2K2.1.  Defendant’s possession of the firearm continued well beyond the date on which the amendment became effective.  U.S. v. Hadaway, 998 F.2d 917 (11th Cir.  1993).

 

11th Circuit says prior conviction need not have caused deportation for enhance­ment to apply. (131) Defen­dant was an alien who was con­victed of illegally reentering the United States af­ter having been deported.  He re­ceived an enhancement under section 2L1.2(b)(1), which applies if the defen­dant previously was de­ported after a conviction for a felony other than an immigration felony.  The 11th Circuit rejected the ar­gument that the enhance­ment only applies if the prior felony conviction was the cause of the deporta­tion.  “After” is a word of chronology, not a word of causa­tion.  Application note 6, effective November 1, 1991, after defen­dant was sentenced, states that “deported after a convic­tion” means that the deportation was subsequent to the conviction, whether or not the de­portation was in response to such con­viction.  There was no ex post facto vio­lation in applying the amended note to de­fendant since it merely clarified an existing guideline, and did not change the law. U.S. v. Adeleke, 968 F.2d 1159 (11th Cir. 1992).

 

11th Circuit refuses to follow amended commen­tary prohibiting ob­struction en­hancement for destruction of evi­dence. (131) At the time of his arrest, defendant at­tempted to hand his jacket to a couple standing nearby.  The jacket contained drugs.  The 11th Cir­cuit af­firmed the enhancement, despite a November 1990 amendment to the commentary to section 3C1.1 which would seem to prohibit the enhancement in such a situation.  That commentary provides that an attempt to dispose of material evidence made con­temporaneously with arrest, shall not, by itself, be grounds for an obstruction en­hancement.  Since the 11th Circuit previously determined as a matter of law that an attempt to destroy evidence just before arrest consti­tuted obstruction of justice, the court de­clined to be bound by guideline commentary changes unless or until Congress amends the guideline itself to re­flect the change.  U.S. v. Louis, 967 F.2d 1550 (11th Cir. 1992).

 

11th Circuit finds no ex post facto violation in application of amended relevant conduct pro­vision. (131) Defen­dant pled guilty to a single sale of crack cocaine but her base offense level was calculated on the basis of all the drugs dis­tributed by the conspiracy in which she was in­volved.  De­fendant contended that application of the version of guide­line § 1B1.3 in ef­fect at the time she was sen­tenced vi­olated the ex post facto clause.  Under the 1989 version of the guideline in effect at the time defendant was sentenced, a defendant could be held ac­countable for the quantities of co­caine sold by codefendants whether or not the defendant had pled guilty to a conspiracy charge.  Defendant contended the prior version of § 1B1.3 in effect at the time she com­mitted the offense did not permit this.  The 11th Circuit found no ex post facto violation.  The prior version of the guidelines intended for relevant conduct to include all acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction.  The 1989 amendment merely clarified this in­tent and was not a substantive change.  U.S. v. Robinson, 935 F.2d 201 (11th Cir. 1991).

 

11th Circuit states that court should consider clarifying amendments in interpreting guide­lines. (131)  The 11th Cir­cuit stated that a court should consider clarifying amendments when in­terpreting the guidelines, even when sentencing defen­dants convicted before the effec­tive date of the amend­ments.  Under the commentary to the guidelines that became ef­fective November 1, 1990, a two level en­hancement is not warranted where the de­fendant pro­vides incomplete or misleading in­formation not amounting to a material false­hood in a presentence in­terview.  Defendant had informed DEA agents shortly after his ar­rest that he had made several trips in the past to deliver cocaine to his co-defendant.  There­fore, his failure to repeat this information to the probation officer was not a material false­hood.  U.S. v. Howard, 923 F.2d 1500 (11th Cir. 1991).

 

11th Circuit remands where court failed to apply amended guidelines in effect at time of sen­tencing. (131) Defendant was denied a sentence reduc­tion for ac­ceptance of responsi­bility on the ground that no such re­duction was available to a defendant who had ob­structed justice.  The guidelines had been amended prior to de­fendant’s sentencing to permit both a downward adjust­ment for acceptance of re­sponsibility and an upward adjust­ment for ob­struction of justice in “extraordinary cases.”  The 11th Circuit remanded the case, finding that the district court had failed to properly apply the guide­lines in effect on the date de­fendant was sentenced.  The district court was in­structed to determine whether de­fendant’s case qualified as “extraordinary” under the amended guidelines, thereby enti­tling him to a reduction for acceptance of responsibility.  U.S. v. Marin, 916 F.2d 1536 (11th Cir. 1990).

 

11th Circuit refuses to apply amended guide­line where ef­fect would be to increase defen­dant’s sentence. (131) The sentencing guide­lines were amended November 1, 1989 adding a new guideline, § 2K1.7, which gov­erns the use of fire to commit a federal felony.  Defen­dants committed their offenses prior to this date, and were sentenced Novem­ber 8, 1989, one week after the amendments took ef­fect.  The 11th Circuit noted that ordinarily sentences are to be determined based on the guidelines in effect at the time a defendant is sentenced.  However, since the effect of apply­ing the new guideline would be to increase de­fendant’s sen­tence in violation of the ex post facto clause, the court ap­plied old § 2K1.4 to the offense.  U.S. v. Worthy, 915 F.2d 1514 (11th Cir. 1990).

 

11th Circuit rules that in interpreting the guidelines, courts should consider even sub­sequently-amended commentary. (131) After defendant committed his of­fense, the Commis­sion amended the Com­mentary to § 2B1.1(b) to clarify the rule adopted by the guide­line.  The 11th Circuit held that “courts should consider such clarifying amend­ments to the guidelines’ com­mentary in interpreting the guidelines, even with regard to offenders con­victed of offenses occurring before the effective date of the amendments.”  This is because in most cases, “these amendments do not effect a substan­tive change, but rather are intended only to clarify the rule adopted by a par­ticular guideline.”  U.S. v. Scroggins, 880 F.2d 1204 (11th Cir. 1989).

 

D.C. Circuit says retroactive prohibition of “youth­ful guidance” departure would vio­late ex post facto clause. (131) Effective November 1, 1992, the guidelines were amended by section 5H1.12 to prohibit de­parture based on lack of guidance as a youth.  The D.C. Circuit held that applying this guideline retroactively to offenses committed before November 1, 1992 would violate the ex post facto clause.  Thus, for offenses commit­ted before November 1, 1992, the court re­tains discretion to depart downward for de­fendant’s lack of guidance as a youth and his­tory of child abuse.  However, there must be a plausible causal nexus between the lack of guidance and exposure to domestic violence and the offense for which the defendant is being sentenced.  In addition, the court should consider whether defendant’s child­hood exposure to domestic violence was suf­ficiently extraordinary to be weighed under section 5H1.3, which states that mental and emotional conditions are not ordinarily rele­vant in deciding whether to depart.  U.S. v. Clark, 8 F.3d 839 (D.C. Cir. 1993).

 

D.C. Circuit directs district court to con­sider ex post facto problem caused by amendment to im­migration guideline. (131) Defendant pled guilty to il­legally enter­ing the United States.  He re­ceived a four-level adjustment under guideline sec­tion 2L1.2(b)(1) because he had previously been de­ported after convic­tion of a non-immigra­tion felony.  Subsection (b)(1) was added to section 2L1.2 on November 1, 1989.  Defen­dant illegally entered the country May 1989, six months before the amendment went into effect.  The trial court and the parties failed to consider this issue or raise it on appeal.  Since the case was being remanded on other grounds, the D.C. Circuit directed the district court to consider the ex post facto problem.  U.S. v. Molina, 952 F.2d 514 (D.C. Cir. 1992).

 

D.C. Circuit holds using amended drug guideline vi­olated ex post facto clause. (131) Defendant was con­victed of possession of more than five grams of crack cocaine.  The version of section 2D2.1 in ef­fect at the time defendant commit­ted his offense pro­vided for a sentence of zero to six months’ impris­onment.  How­ever, 21 U.S.C. section 844(a), in effect when defendant committed his offense, man­dated a minimum sentence of 5 years for possessing more than five grams of co­caine base.  Defendant re­ceived a 63-month sentence based upon the amended ver­sion of section 2D2.1 in ef­fect at the time he was sen­tenced.  The D.C. Circuit ruled that the applica­tion of the amended version of section 2D2.1 violated the ex post facto clause because it ef­fected substan­tive changes which increased defen­dant’s sen­tence.  Sec­tion 5G1.1(b) provides that where a mandatory minimum sentence is greater than the maximum of the applicable guideline range, the manda­tory mini­mum is the guide­line sentence.  Thus, defen­dant should have received the mandatory minimum 60 month sentence.  U.S. v. Green, 952 F.2d 414 (D.C. Cir. 1991).

 

D.C. Circuit requires previous version of guidelines  to be applied where amendment was “substantive.” (131) Defendant argued that the trial court incorrectly failed to find that he knew or rea­sonably could have foreseen the weight of the heroin to be dis­tributed by his conspir­acy.  The D.C. Circuit agreed that the guidelines in ef­fect prior to November 1, 1989 required proof that de­fendant knew or should have known the weight of the heroin to be dis­tributed.  Under the amended guidelines, sci­enter is not required.  Since this was a sub­stantive change, defendant must be sen­tenced under the guide­lines in effect at the time of his offense.  The case was remanded for the dis­trict court to determine whether defendant had the requi­site scienter.  U.S. v. Lam Kwong-Wah, 924 F.2d 298 (D.C. Cir. 1991).

 

California District Court says applying bank robbery amendment violated ex post facto bar. (131) Pursuant to a stipulation by the parties, District Judge Rhoades added two levels to defendant’s guideline sentence based on the November 1, 1989, amendment to section 2B3.1(b)(1).  That section provides for a two-level increase if the property of a fi­nancial institution or post office was taken.  In this habeas corpus action, the Judge ruled that this violated the ex post facto clause, be­cause defendant’s bank robberies were com­mitted before the effective date of the amendment to the guidelines.  Nevertheless, the court denied the habeas petition because defendant had waived his right to appeal as part of the plea agreement, and this consti­tuted a waiver of his right to collaterally at­tack his sentence.  U.S. v. Kuhl, 816 F.Supp. 623 (S.D. Cal. 1993).

 

Arkansas District Court finds ex post facto violation in ap­plication of amended guide­lines. (131) Defendant was sen­tenced Novem­ber 20, 1990 for firearms offenses committed prior to November 1, 1990.  Under the November 1, 1990 guidelines, defendant had a guideline range of 24 to 30 months.  Under the version of the guidelines which applied at the time defendant commit­ted the offense, defen­dant had a sentencing range of 10 to 16 months.  The District Court for the Eastern Dis­trict of Arkansas found that application of the amended guideline would violate the ex post facto clause.  The retroactive application of the guidelines would disad­vantage defendant by more than doubling his term of im­prisonment.  U.S. v. Vastelica, 751 F.Supp. 803 (E.D. Ark. 1990).

 

California district court refuses to apply cur­rent guide­line for bank robbery, citing ex post facto clause. (131) 18 U.S.C. § 3583(a)(4)(b) requires the court to use the guidelines in effect at the time of sentencing.  In this case however, the current guideline for bank robbery called for a longer time of im­prisonment than the guide­lines in ef­fect at the time the defendant committed the offense.  The Central District Court of California held that the application of the current guide­lines, as applied to the defendant, violated the ex post facto clause.  Ac­cordingly, the court imposed sen­tence pursuant to the guidelines in effect at the time the of­fenses were com­mitted.  U.S. v. Graham, 731 F.Supp. 944 (C.D. Cal. 1990).

 

Commission makes “mixture or substance” amendment and LSD amendment retroac­tive. (131) Among the Guideline amend­ments that became effective November 1, 1993 is an amendment resolving an inter­circuit conflict over the meaning of the term “mixture or substance” as used in section 2D1.1.  The amendment provides that the term does not include portions of a drug mix­ture that must be separated from the con­trolled substance before the controlled sub­stance can be used.  On July 27, 1993, the Sentencing Commission made this amend­ment retroactive under section 1B1.10.  It also made retroactive the November 1, 1993 amendment to the LSD guideline, changing the calculation of offense levels for LSD on a carrier medium.

 

Commission makes currency transaction amend­ment retroactive. (131) In an amendment which took effect November 1, 1993, the Commission reformulated sec­tions 2S1.3 and 2S1.4 combining them into one guideline and lowering sentences in cases where there is no intent to hide money de­rived from unlawful activity.  On July 27, 1993, the Commission voted to make this amendment retroactive under section 1B1.10.

 

Commission retroactively reduces equiva­lency of phenylcyclohexamine (PCE). (131) Effective November 1, 1993, the Sentencing Com­mission amended the commentary to section 2D1.1, Application Note 10 in the “drug equivalency tables,” in the subdivision cap­tioned “LSD, PCP and other schedule I and II hallucinogens” to reduce the equiva­lency of phenylcyclohexamine (PCE) from 5.79 kilo­grams of marijuana to 1 kilogram of mari­juana.  The amendment is retroactive and conforms to new information from the drug enforcement administration.  In addi­tion, the name of the drug was changed to “N-ethyl-1-phenylcyclohexylamine.”

 

Commission adopts ex post facto pol­icy statement.  (131) In policy state­ment 1B1.11, adopted Septem­ber 16, 1992, effec­tive November 1, 1992, the Sen­tencing Commission stated that “[i]f the court deter­mines that use of the guidelines manual in ef­fect on the date that the defendant is sen­tenced would violate the ex post facto clause of the United States Constitu­tion, the court shall use the Guidelines Manual in ef­fect on the date that the offense of conviction was committed.  In the commentary, the Commis­sion states that Congress did not expect the ex post facto clause to apply to amended sen­tencing guidelines.  Nevertheless, it notes that the courts generally have held that the ex post facto clause does apply to guideline amend­ments that subject the defendant to in­creased punishment.

 

Amendment stating that bank teller is not a vulnerable victim is retroactive. (131) Ef­fective November 1, 1993, the Sentencing Commission made retroactive its November 1, 1992 amendment clarifying that, under nor­mal circumstances, a bank teller is not a vul­nerable victim.

 

Dept. of Justice says organizational guide­lines do not apply to offenses committed before November 1, 1991. (131) On November 7, 1991, Robert S. Mueller, III, As­sistant Attorney General for the Criminal Di­vision of the Department of Justice, is­sued a memorandum to all federal prosecutors ad­vising them that the position of the Depart­ment of Justice is that the new Guidelines for Sentencing of Organizations (Chapter 8 of the Guidelines Manual which became effective on Novem­ber 1, 1991) are not retroactive.  The memo says the new guidelines apply only to offenses committed on or after November 1, 1991, but not to offenses committed before that date, regardless of whether application of the guidelines would have a potentially advan­tageous or an adverse effect on the defendant.

 

Commission adopts new section 1B1.11 stating that guideline in effect at date of sentencing gov­erns. (131) Title 18 U.S.C. section 3553 requires the court to apply the guideline in effect at the time of sentencing.  Nevertheless, to avoid ex post facto con­cerns, the Commission, in a proposed amendment effective November 1, 1992, adopted a new policy statement, section 1B1.11.  That sec­tion provides that the court should use the guidelines manual in effect on the date of sen­tencing unless the court de­termines that this would violate the ex post facto clause, in which case the court should use the guide­line manual in effect on the date the offense was committed.

 

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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