§194 Use of Guidelines in Effect on Date of Sentencing, Including “One Book” Rule
8th Circuit upholds constitutionality of statute requiring use of earlier guidelines manual for resentencing. (120)(194) Under 18 U.S.C. § 3742(g)(1), a court must use the version of the guidelines in effect on the date of the previous sentence when resentencing a defendant on remand after a direct appeal. On resentencing, defendant argued that § 3742(g)(1) was unconstitutional because it was irrational and treated similarly situated defendants differently. The Eighth Circuit found that the statute was constitutional because it sought to achieve the goal of sentencing defendants under the guidelines in effect at their original sentencing. U.S. v. Binkholder, __ F.3d __ (8th Cir. Nov. 20, 2018) No. 17-2688.
5th Circuit finds using incorrect version of guidelines violated ex post facto clause. (194)(340) Defendant pled guilty to reentering the country after deportation. He was sentenced under the 2016 guidelines in effect the date he was sentenced. He argued for the first time on appeal that the use of the 2016 guidelines violated the ex post facto clause because his pror convictions were neither crimes of violence nor aggravated felonies under the 2015 guidelines in effect at the time of the crime. The Fifth Circuit agreed. Under the 2015 version of § 2L1.2 defendant’s Florida burglary conviction was not an aggravated felony because he was only sentenced to 364 days of imprisonment. Nor was it a crime of violence because the statute was too broad, and included curtilages in its definition of a dwelling. U.S. v. Urbina-Fuentes, __ F.3d __ (5th Cir. Aug. 20, 2018) No. 17-40424.
1st Circuit orders re-sentencing using fraud guidelines in effect at time of sentencing. (194)(219) The district judge used the wrong version of the guidelines, resulting in an offense level six levels higher than it should have been. The First Circuit reversed, holding that the trial court should have used the 2015 guidelines instead of the 2014 guidelines. A 2015 amendment changed the “loss” ranges in § 2B1.1(b) and incorporated a “substantial financial hardship” factor in determining the number of victims under § 2B1.1(b)(2). These two amendments to the 2015 guidelines would have reduced defendant’s offense level by six. The panel directed the district court to re-sentence defendant using § 2B1.1(b) in effect at the time of sentencing. U.S. v. Valdés-Ayala, __ F.3d __ (1st Cir. Aug. 15, 2018) No. 16-1002.
8th Circuit finds no plain error in application of 2015 guidelines. (194) Defendant was convicted of firearms charges. He argued for the first time on appeal that he court improperly used the 2015 guidelines rather than the 2016 guidelines in effect at the time of sentencing. The Eighth Circuit found no plain error. The PSR recited that it used the 2015 Guidelines Manual, but the relevant provisions were unchanged between 2015 and 2016. Defendant did not show, or even argue, that the supposed error seriously affected the fairness, integrity, or public reputation of judicial proceedings. U.S. v. Williams, __ F.3d __ (8th Cir. Aug. 14, 2018) No. 17-1632.
9th Circuit says new definition of “extortion” in guidelines is not retroactive. (194)(504) Interpreting the Sentencing Commission’s August 1, 2016 amendment to the definition of “extortion,” the Ninth Circuit held that the new definition reaches only injuries or threatened injuries to a person, not property. As a result, the court held that robbery in violation of California Penal Code § 211 is no longer a “crime of violence.” Because this change was substantive, however, the Ninth Circuit held that the amendment was not retroactive. Therefore the amendment did not apply to defendants sentenced before the amendment. U.S. v. Bankston, __ F.3d __ (9th Cir. Aug. 23, 2018) No. 16-10124.
1st Circuit holds that one book rule did not violate the ex post facto clause. (194) Defendant was one of four former police officers convicted in connection with the beating death of a citizen in police custody. Some of the counts took place in July 2003, when the beating occurred, while some counts took place in March 2008, when defendant lied to investigators about his participation in the beating. The court sentenced defendant under the November 2009 guidelines. The guidelines’ one book rule, § 1B1.11(b)(2), specifies that a single version of the Guidelines Manual should be applied for all convictions at sentencing. In the multiple-offense scenario, “[i]f the defendant is convicted of two offenses, the first committed before, and the second after, a revised edition of the Guidelines Manual became effective, the revised edition of the Guidelines Manual is to be applied to both offenses.” § 1B1.11(b)(3). The First Circuit held that the one book rule did not violate the ex post facto clause as applied to a series of grouped offenses like defendant’s. The one book and grouping rules placed defendant on notice that if he committed a closely related offense in the future, his sentence for both offenses would be calculated under the guidelines in effect at the time of that later, related offense. U.S. v. Pagan-Ferrer, 736 F.3d 573 (1st Cir. 2013).
1st Circuit uses “one book” rule to deny three level acceptance of responsibility reduction. (194) Defendant was sentenced in May 1993, but the district court applied the 1988 guidelines in effect when defendant committed his offense because the 1992 guidelines would have resulted in a longer sentence. The 1st Circuit relied on the “one book” rule in § 1B1.11(b)(2) of the 1992 guidelines to find that defendant was not eligible for the three level acceptance of responsibility reduction available under the 1992 guidelines. This provision states that when a district court applies an earlier version of the guidelines, it must apply all of the guidelines in that earlier version, not one section from one version and one section from another. The application of the “one book” rule did not violate the ex post facto clause. U.S. v. Springer, 28 F.3d 236 (1st Cir. 1994).
2nd Circuit says court correctly applied 2008 guidelines without giving defendant benefit of Amendments 748 and 750. (194) In 2010, defendant pled guilty to crack cocaine charges. The court applied the 2008 edition of the guidelines in effect at the time defendant committed the offense, and sentenced him to 300 months. The court did not apply later intervening amendments 748 and 750, that would have reduced defendant’s base offense level calculation. The court determined that, despite these amendments, defendant’s total offense level was lower under the 2008 guidelines than it was under the 2011 edition, since the 2011 edition contained certain new enhancements that applied to defendant’s offense. The Second Circuit ruled that the district court correctly applied the 2008 edition in its entirety, without giving defendant the benefit of Amendments 748 and 750. Those amendments were substantive rather than clarifying under § 1B1.11(b)(2). Therefore, defendant was not entitled to a reduction in offense level based on these amendments. U.S. v. Brooks, 732 F.3d 148 (2d Cir. 2013).
2nd Circuit holds that use of expired guideline constituted plain error despite overlap of ranges. (194) Between September and October 2000, defendant engaged in a mail fraud scheme. The district court believed that an ex post facto issue would result from the use of the 2001 guidelines, and sentenced defendant under the 1998 guidelines. As it turned out, use of the 2001 guidelines would not have raised any ex post facto issues – defendant’s offense level under the 1998 guidelines was 13, his offense level under the 2001 guidelines would have been 12. Because defendant did not object below, plain error review was applicable. The Second Circuit held that the use of the expired guideline constituted plain error warranting reversal. The government argued that the use of the wrong version of the guidelines did not warrant remand because defendant’s 15-month sentence fell within the ranges called for by both the expired 1998 guidelines (12 to 18 months) and the effective 2001 guidelines (10 to 16 months). See U.S. v. Diaz, 176 F.3d 52 (2d Cir. 1999). However, the facts of this case were more similar to U.S. v. Martinez-Rios, 143 F.3d 662 (2d Cir. 1998) than the cases cited by the government. Martinez-Rios found that a similar error affected the defendant’s “substantial rights” because the court was confident that the defendant would have received a different, shorter sentence absent the oversight. The judge’s comments here, like those of the court in Martinez-Rios, reflected her intent to choose a term of imprisonment based on where it fell within the applicable guideline range, rather than her decision to choose a sentence she had in mind before selecting the applicable guideline. Where the record permits the inference that a defendant would have received a different, shorter sentence absent the unobjected-to error, the defendant’s substantial rights have been affected within the meaning of Rule 52(b). U.S. v. Keigue, 318 F.3d 437 (2d Cir. 2003).
2nd Circuit directs court to consider whether “one book” rule applies to multiple count sentences. (194) Defendant originally was convicted of tax offenses and receiving corrupt payments. The district court later vacated the corrupt payment convictions. On appeal, the Second Circuit reinstated the convictions and remanded for resentencing. Before determining which version of the guidelines to apply, it directed the district court to consider whether the so-called “one book” rule was fully applicable to multiple count sentences. One way to resolve the issue is to calculate the aggregate sentence for all counts under both versions of the guidelines and apply the version yielding the lesser sentencing range. A second approach is to apply the more severe version to the aggregate sentence so long as the conduct underlying at least one count occurred during the time to which that version applies. A third approach is the apply the early version to counts in which the underlying conduct was completed before the later version became effective, and apply the later version to counts involving subsequent conduct. The Sentencing Commission has issued policy statement § 1B1.11(b)(3), which specifies that where some offenses occur before and some occur after a revised guideline version, the later version is to be applied to all offenses. U.S. v. Santopietro, 166 F.3d 88 (2d Cir. 1999).
2nd Circuit applies “one book” rule to find no ex post facto violation. (194) Defendant argued that a five-level enhancement under the 1993 guidelines for brandishing a firearm violated the ex post facto clause, because the 1991 version of § 2B3.2(b)(3)(iii), in effect when he committed his offense, provided for only a three level enhancement. The Second Circuit, applying the so‑called “one book” rule, found no ex post facto violation, since the 1993 guidelines, as a whole, did not expose defendant to a higher sentence. In assessing an ex post facto claim, a court must compare the two statutory schemes as a whole, rather than each provision, to determine if the new scheme can be characterized as more onerous. In the context of the guidelines, the “whole scheme” includes all of the provisions applicable to a defendant’s conduct, not just one amendment or enhancement. Because of changes to the kidnapping guideline that worked to defendant’s benefit, his total offense level under the 1993 guidelines was actually lower than under the 1990 guidelines. U.S. v. Ruggiero, 100 F.3d 284 (2d Cir. 1996).
2nd Circuit uses “one-book rule” in resolving ex post facto clause disputes. (194) Defendant pled guilty to being a felon in possession of a firearm. At the time of the offense, the 1989 guidelines gave no credit for time served in state prison for the offense in which the gun was used. The 1993 guidelines in effect when defendant was sentenced gave such credit. However, the 1993 guidelines, unlike the 1989 guidelines, included an enhanced sentence under § 4B1.4 for a person guilty of possessing a firearm with three prior violent felony convictions. Defendant wanted the 1993 credit for time served but sought to avoid the 1993 § 4B1.4 enhancement. The Second Circuit held that the district court should have applied the 1993 guidelines as a whole. The court said the “one-book rule” should be used to determine whether an ex post facto clause problem exists. Although § 4B1.4 disadvantaged defendant, his sentence was significantly lower than the 1989 guidelines when the 1993 guidelines were applied as a whole,. Therefore, applying the 1993 guidelines did not violate the ex post facto clause and it was plain error not to apply the 1993 guidelines. U.S. v. Keller, 58 F.3d 884 (2d Cir. 1995), abrogation on other grounds recognized by U.S. v. Brothers, 316 F.3d 120 (2d Cir. 2003).
3rd Circuit says even after Booker, court must apply Guidelines in effect on the date of sentencing. (194) Effective November 1, 2007, Amendment 706 modified the Guideline ranges for crack cocaine, decreasing by two the base offense levels. Defendants argued that because the district court used the Guidelines that were in effect on the day that they were sentenced, and because the Guidelines were amended during the pendency of their appeals, the district court’s sentencing calculation amounted to procedural error. The Third Circuit found no error. The Guidelines are no longer mandatory, but that did not render optional § 3553(a)(4)’s direction to consider the Guidelines that are in effect on the date of sentencing. U.S. v. Wise, 515 F.3d 207 (3d Cir. 2008).
3rd Circuit affirms application of “one book rule.” (194) Defendant was sentenced in 1994 for several firearms offenses. Because § 2K2.1 was amended after he committed the charged offenses, the 1993 guidelines in effect at sentencing would have resulted in a harsher sentence than the version in effect when defendant committed the offenses. The parties agreed that the 1990 version of § 2K2.1 was applicable. The district court granted defendant the two-level acceptance of responsibility reduction available under the 1990 guidelines. Defendant argued that the district court should have granted him the three level reduction available under the 1993 guidelines. The Third Circuit, following its recent decision in U.S. v. Corrado, 53 F.3d 620 (3d Cir. 1995), affirmed the district court’s application of the “one book rule.” U.S. v. Griswold, 57 F.3d 291 (3d Cir. 1995).
3rd Circuit upholds codification of “one book rule.” (194) Defendant was involved in a stolen car conspiracy from 1985 through May 1988. To avoid ex post facto problems, the court sentenced him under the 1987 guidelines in effect when he committed his offense, including a two level reduction for acceptance of responsibility. Defendant argued that he should have received the three level reduction available under the 1993 guidelines. He argued that the “one book rule,” the practice of applying only one version of the guidelines that is now codified at § 1B1.11(b)(2), is not binding because it is a policy statement rather than a guideline. The Third Circuit held that the “one book rule” is binding. To the extent that prior Third Circuit opinions disapprove of the one book rule, they have been overruled by § 1B1.11(b)(2). Applying the one book rule did not violate the ex post facto clause because defendant’s sentence was imposed under the law in effect at the time he committed his crimes, and therefore he had fair warning of the specific punishment he faced. U.S. v. Corrado, 53 F.3d 620 (3d Cir. 1995).
4th Circuit says amendment stating that selling child pornography is not abuse or exploitation is clarifying. (194) Defendant sent 21 sexually explicit pictures, including pictures of minors under the age of 12, via the Internet to an undercover agent. Defendant also disclosed that he had been sexually molesting his teenage daughter for several years, and that when he was 13-years old he had molested his nine-year old sister. The district court applied a § 2G2.2(b)(4) enhancement for engaging in a pattern of sexual abuse based on its finding that defendant (1) transmitted numerous sexually explicit photos of minors over the Internet and (2) produced some of those photos. It also departed upward to account for defendant’s sexual molestation of his daughter and his sister. The Fourth Circuit held that under 1996 clarifying amendments, the § 2G2.2(b)(4) enhancement could not be based on defendant’s trafficking in child pornography. Under the amendment, sexual abuse or exploitation of a minor does not include trafficking in material relating to the sexual abuse of exploitation of a minor. The Sentencing Commission has deemed this amendment a clarification of § 2G2.2(b)(4), so it should be applied retroactively. The court’s finding that defendant produced the photos he transmitted was in error. The enhancement could be based on defendant’s sexual abuse of his daughter and sister, but because the enhancement accounted for this conduct, it could not be the basis for an upward departure. U.S. v. Neilssen, 136 F.3d 965 (4th Cir. 1998).
5th Circuit says in absence of guidelines, it was plain error not to consider proposed guideline. (194) Defendant pled guilty to failing to register under the Sex Offender Registration and Notification Act, in violation of 18 U.S.C. § 2250. At the time of the offense, there was no guideline for this offense. Unaware that the Sentencing Commission had submitted a proposed guideline to Congress, the district court sentenced defendant to 60 months. The proposed guideline became effective November 1, 2007, as § 2A3.5. Under the proposed guideline, defendant’s sentencing range would have been 21-27 months. The Fifth Circuit held that the district court’s failure to consider the proposed guideline was plain error. Under the guidelines, if the offense is a felony for which no guideline has been promulgated, a district court should “apply the most analogous guideline.” § 2X5.1. In U.S. v. Armstead, 114 F.3d 504 (5th Cir. 1997), the court ruled that when there is a proposed guideline, the court should use the proposed guideline in determining the most analogous guideline for sentencing purposes. U.S. v. Sanchez, 527 F.3d 463 (5th Cir. 2008).
5th Circuit holds that applying revised guidelines to grouped offenses does not violate ex post facto clause. (194) Defendant committed mail fraud in 1988 and a counterfeiting offense in 1990. The court calculated defendant’s sentence under the 1993 guidelines, which were essentially the same as the 1990 guidelines. However, the 1993 guidelines included for the first time the codification of the “one book rule” in § 1B1.11. One provision of the one book rule says that when a defendant is convicted of multiple offenses, some occurring before and some occurring after a revision of the guidelines, the revised guidelines are to be applied to both offenses. The Fifth Circuit held that the use of the 1993 guidelines did not violate the ex post facto clause. Where a sentencing court groups offenses committed before a change in the guidelines with offenses committed after the change, and then applies the amended guideline, the ex post facto clause is not implicated. A majority of circuits have concluded that a defendant has notice that the version of the sentencing guidelines in effect at the time he committed the last in a series of grouped offenses will apply to the entire group. The use of the one book rule in the 1993 guidelines did not violate the ex post facto clause. Although § 1B1.11(b)(3) was not codified until 1993, the provision was a clarifying amendment that simply reflected the existing practices of courts. U.S. v. Kimler, 167 F.3d 889 (5th Cir. 1999).
6th Circuit suggests motion for immediate remand if district court makes obvious mistake. (194) The district court mistakenly believed that an increase in the Guidelines became effective after defendant committed his crime, and applied a base offense level of 24 rather than 32. The government filed a Rule 35(a) motion to correct the sentence, and the court resentenced defendant to 360 months. However, because the resentencing took place more than seven days after the original sentencing, the district court lacked jurisdiction to correct the sentence, and the appellate court remanded for resentencing. On remand, the district court reimposed the original 188-month sentence and the government appealed. On appeal, the Sixth Circuit held that the error in applying the earlier version of the guidelines was error, and it was not harmless. The district court was obviously concerned about the violent nature of defendant’s offense, and given the chance to increase his sentence based on the proper guidelines calculation, took that opportunity to increase his sentence to 360 months. The appellate court recognized the “terrible judicial inefficiency” that this case presented, and suggested that in a situation where counsel believes the district court has made a mistake, but also realizes the court would lose jurisdiction if a defendant is not resentenced within seven days, the proper course of action is to petition the appellate court seeking an immediate remand to the district court so that the mistake can be corrected. U.S. v. Vicol, 514 F.3d 559 (6th Cir. 2008).
6th Circuit holds that ex post facto violation constituted plain error. (194) Defendant argued for the first time on appeal that the district court erred in applying the 2002 version of the guidelines, which were in effect at the time of sentencing, as opposed to the 1991 or 1992 version in effect at the time his conduct took place. Under U.S. v. Booker, 543 U.S. 220 (2005), when district courts consult the guidelines, they are to continue to consider the sentencing range and pertinent policy statements contained in those guidelines. When the defendant contests the manner in which the court applied the consulted guidelines, an appellate court will review the sentence for reasonableness. Here, had the district court applied the 1991 guidelines, even with an extra enhancement the government contended was applicable, defendant could have received a sentence three months shorter than the sentence he actually received. Therefore, the Sixth Circuit concluded that an ex post facto problem existed, and that it constituted plain error. The error affected defendant’s substantial rights, since it caused him to be sentenced from three to nine more months than he would have otherwise gotten. In addition, the Ex Post Facto Clause is a constitutional mandate. Where that mandate is violated, it seriously affects the fairness, integrity or public reputation of the judicial proceedings. U.S. v. Davis, 397 F.3d 340 (6th Cir. 2005).
7th Circuit permits newer guidelines to be used where change occurred during conspiracy. (194) Defendants petitioned the Supreme Court for a writ of certiorari, contending that their tax fraud conspiracy sentences violated the ex post facto clause because the district court used the sentencing guidelines in effect at sentencing rather than the more favorable version in effect at the time of their offenses. The Supreme Court remanded for reconsideration in light of Peugh v. U.S., __ U.S. __, 133 S.Ct. 2072 (2013). Peugh had rejected U.S. v. Demaree, 459 F.3d 791 (7th Cir. 2006), which held that, in view of the advisory-only status of the guidelines, no ex post facto problem was posed by applying the version of guidelines in effect at sentencing, even if that version treated the defendant’s crimes more harshly than the one in effect at the time of his offense. On remand, the Seventh Circuit held that no violation of the ex post facto clause occurred, since the relevant change to the tax table in § 2T4.1 actually occurred in November 2001, and the tax conspiracy continued until 2003. Although three of the defendants argued that they were no longer active in the conspiracy after that date, they provided no evidence that they withdrew from the conspiracy. U.S. v. Vallone, 752 F.3d 690 (7th Cir. 2014).
7th Circuit says grouping and “one book” rules gave sufficient notice to avoid ex post facto problems. (194) In 2000, defendants pled guilty to conspiracy charges, but prior to sentencing, absconded. Twelve years later, they were arrested and also pled guilty to failure to appear at sentencing. The district court grouped the three counts and, in accord with U.S. v. Demaree, 459 F.3d 791 (7th Cir. 2006), used the 2012 guidelines to calculate their sentences. While defendants’ appeals were pending, the Supreme Court decided Peugh v. U.S., 133 S.Ct. 2072 (2013), which abrogated Demaree and held that the ex post facto clause is violated when a defendant is sentenced under guidelines promulgated after an offense is committed, and the new version provides for a higher sentencing range. Nevertheless, the Seventh Circuit found no error. Under the “one book” rule, if the defendant is convicted of two offenses, the first committed before, and the second after, a revised edition of the Guidelines Manual, the revised edition should to be applied to both offenses. Defendants continued to commit the offense of failing to appear until they were arrested in May 2012, so under the one-book rule, the later version of the guidelines should apply. The grouping and one-book rules provided sufficient notice that defendants’ earlier offenses would be sentenced under the revised guidelines if they continued to commit related offenses. U.S. v. Hallahan, 744 F.3d 497 (7th Cir. 2014).
7th Circuit remands for sentencing under guidelines that went into effect during sentencing hearing. (194) Defendant’s sentencing began on October 31, 2001, the last day of the 2000 edition of the guidelines, and concluded on November 1, 2001, the first day of the new edition’s effectiveness. The district judge concluded that because the sentencing hearing spanned two versions, it would be appropriate to use whichever manual was more favorable to defendant. At the time of sentencing, both the probation office and the judge believed that the 2000 manual was more favorable to defendant, and it was used in all offense level calculations. On appeal, the prosecutor now conceded that the 2001 manual was on balance more favorable. The Seventh Circuit agreed with the prosecutor that a remand was proper so that defendant could be resentenced under the 2001 manual. It was on force on the date sentence was pronounced and thus was the version specified by Congress and the Sentencing Commission. U.S. v. Whitlow, 287 F.3d 638 (7th Cir. 2002).
7th Circuit rules 1993 tax loss amendment was not “clarifying,” and thus not retroactive. (194) Defendant, an attorney, helped a client hide over $700,000 from the IRS. He argued that the court erred in requiring him to choose between the 1991 guidelines in effect at the time of the offenses and the 1996 guidelines in effect at sentencing. Defendant chose the 1991 guideline. The Seventh Circuit held that the district court properly applied the 1991 guidelines because the 1996 guidelines provided for a two-level increase in offense level, and therefore would have violated the ex post facto clause. The district court also properly refused to apply language added in 1993 by Amendment 491 that changed the calculation of tax loss because this would apply the guidelines in a piecemeal fashion. Section 1B1.11(b)(2) bars a court from applying one guideline section from one edition and another guideline section from a different edition. Amendment 491 was not a clarifying amendment. It provided a new definition of tax loss that was a significant change from the 1991 definition in § 2T1.3(a). U.S. v. Minneman, 143 F.3d 274 (7th Cir. 1998).
7th Circuit says sentencing occurs when judge pronounces sentence, not when judgment is entered. (194) The judge pronounced sentence on defendants on October 27 and 28, 1991, and based their sentences on the guidelines in effect on those days. On November 1, 1993, amendments to the guidelines lowered the base offense level for offenses involving crack. The judgments were entered by the clerk of the court on November 4, 1991. Section 3553(a)(4)(A) requires a judge to apply, to the extent the ex post facto clause permits, the sentencing guidelines in effect on the date the defendant is sentenced. The Seventh Circuit held that sentence was imposed on the day the judge pronounced sentence rather than the date the judgment was entered on the docket sheet. Otherwise, § 3553(c), which requires the court at the time of sentencing to state in open court the reasons for its particular sentence, would make no sense. Also, a judge, when pronouncing sentence before a change in the guidelines, would not be certain which guidelines to proceed under because he would not know exactly when the clerk would enter the judgment on the docket. U.S. v. Evans, 92 F.3d 540 (7th Cir. 1996).
7th Circuit uses “one-book rule” to determine 1992 guidelines did not violate ex post facto clause. (194) Defendant was convicted of drug charges. He received a firearm enhancement under § 2D1.11(b)(1) based on a gun found in the car in which he was riding. He argued that the district court violated the ex post facto clause by applying the firearms enhancement guideline effect at sentencing (1992 guidelines) rather than a more lenient version in effect when he committed his offense (1990 guidelines). Since the 1992 guidelines provided for a lower offense level for the amount of drugs he possessed, he argued that the 1992 guidelines be used for that purpose but that the 1990 guidelines be used for the firearm enhancement. The Seventh Circuit held that the “one-book rule” required the sentencing calculation to be done using only a single guideline. The use of the 1992 guidelines did not violate the ex post facto clause since the lowest possible sentence he could have received under the 1990 guidelines, 168 months, exceeded the most severe sentence, 121 months, that he could receive under the 1992 guidelines. U.S. v. Anderson, 61 F.3d 1290 (7th Cir. 1995) (en banc).
8th Circuit applies one-book rule to grouped offenses despite ex post facto argument. (194)(195) In 1998, defendant, a citizen of Rwanda, told a number of lies to U.S. officials to obtain refugee status, including that he was the brother of a prominent moderate Hutu politician, Twagiramungu. He eventually became a citizen of the U.S. In 2014, after receiving a tip from prosecutors in Rwanda, investigators interviewed defendant, who denied telling U.S. officials he was related to Twagiramungu. Defendant was convicted of three counts related to his unlawful procurement of naturalization, and one count of falsely stating to investigators that he never claimed he was related to Twagiramungu. The district court grouped the counts together, and sentenced him under the 2015 guidelines. Defendant argued that applying the one-book rule to his grouped offenses violated the ex post facto clause, because his naturalization fraud comduct occurred no later than 2006, The Eighth Circuit found no ex post facto violation. Under U.S. v. Anderson, 570 F.3d 1025 (8th Cir. 2009), applying the one-book rule to grouped offenses does not violate the ex post facto clause. Defendants have fair warning that the revised guidelines manual will apply to grouped offenses. U.S. v. Ngombwa, __ F.3d __ (8th Cir. June 22, 2018) No. 17-1688.
8th Circuit finds no plain error in use of Guidelines in effect on date of offense. (194) The district court used the 1997 Guidelines to calculate defendant’s sentencing range for a murder that she committed in 1998. At sentencing, the court noted that Guidelines in effect on the date of sentencing would have yielded a much higher sentencing range. Defendant did not object to the district court’s use of the 1997 Guidelines, and the Eighth Circuit held that the district court had not committed plain error in using those Guidelines. U.S. v. Deegan, 605 F.3d 625 (8th Cir. 2010).
8th Circuit rules use of newer money laundering guideline would have violated Ex Post Facto Clause. (194) The district court sentenced defendant using the 2000 money laundering guidelines in effect at the time of his offenses, rather than the 2002 version in effect at sentencing. The Eighth Circuit ruled that the district court properly used to 2000 guidelines in order to avoid an Ex Post Facto Clause violation. Under the 2000 guidelines, defendant received an offense level of 21. Under the 2002 guidelines, the court would have applied the guideline for the underlying offense. U.S.S.G. § 2S1.1 (a)(1) (2002). In this case, the primary underlying offense was fraud. Although defendant’s base offense level would have been six under § 2B1.1(a), intended pecuniary loss to the government the of at least $200,000 would have resulted in a 12-level enhancement § 2B1.1 (b)(1)(G). Moreover, three additional increases that were unavailable under the 2000 guideline would have been proper under the 2002 guidelines: (1) a two-level increase under § 2S1.1(b)(2)(B) for a conviction under 18 U.S.C. § 1956; (2) a two-level increase under § 2B1.1(b)(7)(C) because the offense involved a violation of a judgment in a prior case and a seizure order; and (3) a two-level increase under § 2B1.1(b)(8)(C) for using “sophisticated means.” This would have resulted in an offense level of 24, at least three levels higher than that which he received under the 2000 guidelines. U.S. v. Frank, 354 F.3d 910 (8th Cir. 2004).
8th Circuit holds that use of later guidelines did not violate ex post facto clause where Congress amended statute to increase sentence. (194) Defendant was originally sentenced under the 1992 guidelines for four drug crimes. The appellate court affirmed the convictions but vacated the sentences on two counts for violating the ex post facto clause. After resentencing, defendant argued that the district court should have applied the 1987 guidelines for the supervised release determination. The Eighth Circuit held that use of the 1992 guidelines did not violate ex post facto clause. The October 1987 supervised release guideline designates only a three year term of supervised release for a Class A or B felony. In December 1987, however, Congress amended the statute to provide for a five‑year term of supervised release for a Class A or Class B felony. Although courts should generally adhere to a “one book” rule in applying the guidelines, it should not be done without recognizing a statutory amendment that lengthens the sentence. The 1987 guidelines provide that if the guidelines sentence is below the statutory minimum, the statutory minimum shall be the guideline sentence. Thus the statutory change, effective while defendant’s crime was still occurring, trumped the guidelines. U.S. v. Behler, 100 F.3d 632 (8th Cir. 1996).
9th Circuit finds no error in failure to follow future amendment to Guidelines. (194) Defendant was convicted of illegal reentry after deportation, in violation of 8 U.S.C. § 1326. At sentencing, the district court imposed a term of supervised release. A month later, the guidelines were amended to state that a court ordinarily should not impose a supervised release term when the defendant is likely to be deported after serving his sentence. The Ninth Circuit held that district courts are not required to consider a future amendment to the guidelines unless the amendment has been given retroactive effect by the Sentencing Commission. U.S. v. Rojas-Pedroza, 716 F.3d 1253 (9th Cir. 2013).
9th Circuit requires earlier version of § 5G1.3(c) to be used because it was more favorable to defendant. (194) Correcting its earlier opinion, the Ninth Circuit held that the 1994 version of § 5G1.3(c) was more favorable to defendant than the 1995 version. See U.S. v. Chea, 231 F.3d 531, 539-40 (9th Cir. 2000). Thus, on remand, the district court must apply the 1994 guidelines in determining whether and to what extent to run the new sentence concurrently to defendant’s prior undischarged term of imprisonment. In doing so, it must either apply the methodology described in the guideline commentary or provide good reason for not doing so. Id. at 536; U.S. v. Redman, 35 F.3d 437, 441 (9th Cir. 1994). If the court chooses the latter course, it must explain its decision on the record in a way that indicates it has considered the commentary methodology. Id. U.S. v. King, 257 F.3d 1013 (9th Cir. 2001).
9th Circuit says granting 2255 motion did not require court to reconsider entire sentence. (194) The district court granted defendant’s § 2255 motion but concluded that “the only issue to be decided at the resentencing hearing is the propriety of the $1,000 fine.” Before resentencing, the guidelines were amended to add the “safety valve” in § 5C1.2, and defendant argued that the district court was required to resentence de novo because his initial sentence was procedurally improper. The Ninth Circuit rejected the argument, noting that 28 U.S.C. § 2255 expressly provides that a court may “resentence him or grant a new trial or correct a sentence as may appear appropriate.” While the district court was permitted to consider all aspects of the sentence it was not required to do so. Judge Boochever dissented, arguing that the trial court misunderstood that it had discretion to resentence defendant in accordance with the then-current guideline. U.S. v. Jones, 114 F.3d 896 (9th Cir. 1997).
9th Circuit says court may consider post-sentencing information in resentencing. (194) After sentencing, defendant filed a motion under 28 U.S.C. § 2255 claiming he had not been given enough time to read the presentence report before sentencing, and therefore had not been able to present accurate financial information. The district court granted his petition but ordered that “the only issue to be decided at the resentencing hearing is the propriety of the $1,000 fine.” At resentencing, the judge re-imposed the $1,000 fine after noting that defendant had improved his financial situation, post-sentencing, by paying down a mortgage. On appeal, defendant argued that under U.S. v. Klump, 57 F.3d 801, 803 (9th Cir.), cert. denied, 116 S.Ct. 675 (1995), and U.S. v. Caterino, 29 F.3d 1390 (9th Cir. 1994), courts are precluded from considering post-sentencing conduct at resentencing. The Ninth Circuit expressed doubt about this supposed “rule,” but noted that in any event Klump and Caterino involved resentencing after remand from the Court of Appeals, whereas this case involved resentencing without an intervening remand. The district court properly considered the “best available information” in re-setting defendant’s fine. U.S. v. Jones, 114 F.3d 896 (9th Cir. 1997).
9th Circuit says mandatory minimum prevents resentencing on retroactive amendment even though “safety valve” might apply. (194) Defendant was sentenced to a mandatory minimum term of 60 months for growing more than 100 marijuana plants. Thereafter, on Sept. 23, 1994, the “safety valve” provision in 18 U.S.C. § 3553(f) became effective. Then on November 1, 1995, the Commission reduced the marijuana plant equivalency from 1 kilogram to 100 grams of marijuana, retroactively. Defendant moved for resentencing under the retroactive amendment, but the court denied the motion on the ground that the amendment did not affect defendant’s statutory 60-month mandatory minimum sentence. On appeal, the Ninth Circuit affirmed, ruling that the change in the marijuana equivalency tables in the guidelines did not affect defendant’s’ sentence and therefore the district court had no authority to reduce the sentence under 18 U.S.C. § 3582(c)(2). The “safety valve” provision did not provide an independent basis for reducing his sentence because that provision is not retroactive and defendant was not eligible for resentencing. U.S. v. Mullanix, 99 F.3d 323 (9th Cir. 1996).
9th Circuit applies “clarifying” amendment where sentences on two convictions were increased for one probation violation. (194) On November 1, 1995, application note 11 to guideline § 4A1.2 was amended to provide that where a revocation applies to multiple sentences that are counted separately under § 4A.12(a)(2), the court should add the term of imprisonment imposed on revocation to the sentence that will result in the greatest increase in criminal history points. Before this amendment, in U.S. v. Smith, 905 F.2d 1296, 1303 (9th Cir. 1990), the court held that “all sentences based on one conviction are to be aggregated, while sentences based on different convictions should be computed separately.” However in U.S. v. Streat, 22 F.3d 109 (6th Cir. 1994), the Sixth Circuit held that the amended note 11 added a new method for calculating sentences, requiring the revocation term to be applied only to one of the prior convictions. The Ninth Circuit found Streat persuasive. The court also concluded that the amendment clarifies the application of the guideline rather than making a substantive change. Accordingly it is to be applied retroactively. Defendant’s sentence was vacated and the case was remanded for resentencing with a reduced criminal history category. U.S. v. Flores, 93 F.3d 587 (9th Cir. 1996).
9th Circuit applies “one book” rule but gives retroactive effect to later clarifying amendments. (194) The Ninth Circuit held that the 1990 guidelines manual must be applied in its entirety. Under § 1B1.11(b)(2), effective November 1, 1992, the court cannot apply one section from one edition and another section from another edition. However, subsequent amendments are given retroactive effect if they make clarifying rather than substantive changes. In this case, the Ninth Circuit gave retroactive effect to a subsequent clarifying amendment, while applying the 1990 guidelines manual. U.S. v. Flores, 93 F.3d 587 (9th Cir. 1996).
9th Circuit declines to apply guideline that was amended after sentencing. (194) Defendant argued that after he was sentenced, § 5G1.3(b) was amended to require his sentence for violating probation to run concurrent to his state law sentences for the probation-violating crimes. The 9th Circuit refused to apply the amendment to defendant, noting that it must apply the guidelines in effect on the date of sentencing. Under the November, 1988, version of § 5G1.3(b) in effect on the date of sentencing, it was proper to impose consecutive sentences. U.S. v. Donaghe, 50 F.3d 608 (9th Cir. 1994).
10th Circuit upholds use of Guidelines in effect at sentencing. (194) Defendant participated in a conspiracy between 1998 and 2006. At his sentencing in 2008, defendant argued that the district court should use the 2000 version of the Sentencing Guidelines. The district court found that because defendant’s offense continued until 2006, it could use the 2004 or 2005 version of the Guidelines without implicating the Ex Post Facto Clause. Because those Guidelines did not differ from the 2008 Guidelines, the district court employed the 2008 Guidelines. The Tenth Circuit agreed that the 2004 or 2005 Guidelines would not have produced a result different from the 2008 Guidelines and affirmed. U.S. v. Martinez, 610 F.3d 1216 (10th Cir. 2010).
10th Circuit, en banc, holds amendment excluding liquid by-products does not apply to mandatory minimum. (194) Effective November 1, 1993, the Sentencing Commission amended note 1 to § 2D1.1 to exclude unusable liquid byproducts in computing the weight of controlled substances. Here, defendant possessed 32 grams of a liquid mixture containing 28 grams of pure methamphetamine. The district court sentenced him based on the entire 32 kilograms. Defendant filed a § 3582(c)(2) motion for a sentence reduction. The government conceded that the amended commentary applied for guideline purposes, but contended that defendant was still subject to a mandatory minimum sentence under 21 U.S.C. § 841(b)(1) (A)(viii). The Tenth Circuit, en banc, held that the guideline amendment did not apply for mandatory minimum purposes. In Neal v. U.S., 516 U.S. 284 (1996), the Supreme Court reaffirmed that Chapman v. U.S. 500 U.S. 453 (1991) sets forth the governing definition of “mixture or substance” under § 841. Although Chapman interpreted “mixture or substance” in § 841(b)(1)(B)(v), identical terms in the same statute have the same meaning. Chief Judge Seymour, and Judges Porfilio and Henry dissented. U.S. v. Richards, 87 F.3d 1152 (10th Cir. 1996) (en banc).
10th Circuit applies “One-Book” Rule to find that use of newer guidelines did not violate ex post facto clause. (194) Defendant argued that the use of the 1992 guidelines to calculate loss under § 2F1.1 violated the ex post facto clause. The 10th Circuit, applying the “One-Book” Rule, rejected the claim because the punishment under the 1992 guidelines was no harsher than it would have been under the 1988 guidelines. This rule requires that a single guidelines’ manual govern a defendant’s sentencing calculation in its entirety. Under the 1988 version of § 2F1.1(b), a loss of $163,864 yields a six-level increase; under the 1992 version, it yields a seven-level increase. However, defendant received a three-level reduction for acceptance of responsibility under the 1992 version of § 3E1.1. The 1988 version provided only for a two-level decrease. Use of the 1992 guidelines did not disadvantage defendant since his offense level and guideline range would be the same under either version. U.S. v. Nelson, 36 F.3d 1001 (10th Cir. 1994).
11th Circuit prohibits piecemeal application of guidelines. (194) The district court sentenced defendant under the 1987 guidelines, in effect at the time of his offense, because they were less punitive, as a whole, than the 1992 guidelines in effect at sentencing. Defendant argued that he was eligible for the additional one level reduction for acceptance of responsibility under § 3E1.1 of the 1992 guidelines in effect at his sentencing. The 11th Circuit disagreed, holding that the guidelines must be applied as a cohesive whole rather than in a piecemeal fashion. A defendant cannot mix and match amended provisions to achieve the most favorable sentence possible. U.S. v. Lance, 23 F.3d 343 (11th Cir. 1994).
D.C. Circuit holds that 1994 guidelines were not applicable where fraud continued “up to 1996.” (194) Defendant pled guilty to bank fraud relating to the conveyance of a parcel of property. He challenged the court’s finding that the owner of the property was a vulnerable victim, claiming that the 1994 guidelines limited the definition of “victim” to cover only the credit union that issued the loan, not the property owner who lost her property. The D.C. Circuit rejected this argument, since the 1994 guidelines were not applicable. Sentencing courts are obliged to apply the version of the guidelines in effect at the time of sentencing, unless doing so would violate the ex post facto clause. The indictment to which defendant pled guilty described a scheme to defraud “continuing up to 1996.” Under the guidelines, “the last date of the offense of conviction” was after November 1, 1995, the effective date of the 1995 amendment. Thus, the district court could not have applied the 1994 guidelines, and the first premise of defendant’s vulnerable victim claim