§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.