Written by attorney Charles Albert Ross

The Ex Post Facto Clause and Plea Bargaining in Federal Criminal Cases

Out With the Old and in With the New? -- Plea Bargaining, DOJ, and the Ex Post Facto Clause


Article I, Section 9 of the United States Constitution prohibits any Ex Post Facto law from being passed. This Article protects criminal defendants from being sentenced to a longer term of imprisonment than what was in effect at the time they committed their crime.

The Sentencing Guidelines also recognize the protections of the Ex Post Facto Clause.

§ 1B1.11 of the Sentencing Guidelines instructs:

(a) The court shall use the Guidelines Manual in effect on the date that the

defendant is sentenced.

(b) (1) If 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.

The Commentary to § 1B1.11 of the Guidelines further instructs that “the last date of the offense of conviction is the controlling date for ex post facto purposes."

For years under pre-Booker sentencing practice, when a more recent version of the Guidelines resulted in a harsher sentence for conduct committed while Guidelines requiring less jail time were in effect, earlier, less punitive versions of the Guidelines were normally applied. In United Statesv. Booker, 543 U.S. 220 (2005), the Supreme Court held that the Sentencing Guidelines are advisory. As a result, courts have been wrestling with this question of whether or not the Ex Post Facto clause has been violated if an individual is sentenced under a harsher, more recent Guideline, effective at the time of sentencing, rather than a prior Guideline effective on the date the offense was committed.

The Department of Justice’s Policy on Sentencing

and the Ex Post Facto Clause:

Effective August 8, 2008, the Department of Justice took the position that the Ex Post Facto Clause “does not bar application of a post-offense amendment that increases the advisory Guidelines range." See Letter from Edward Sullivan, Trial Attorney, United States Dep’t. of Justice, to Hon. Mark J. Lander, Clerk, United States Court of Appeals for the D. C. Circuit, re: United States v. Turner, No. 08-3107 (D.C. Cir.) (Aug. 22, 2008). Since at least that pronouncement, Assistant United States Attorneys across the country have taken the position at sentencing that although the earlier Sentencing Guidelines from a defendant’s date of offense may result in less imprisonment time than application of the current amended Guidelines, the current Guidelines should apply because the Guidelines are now merely advisory to the District Court and do not require increased punishment.

DOJ’s position was formed by the Supreme Court’s decisions in Rita v. United States, 551 U.S. 338, 341 (2007), Gall v. United States, 128 S.Ct. 586 (2007), and Kimbrough v. United States, 128 S. Ct. 558 (2007), which confirmed the non-mandatory nature of the Guidelines. In Rita, the Court held that although courts of appeals may presume that a within Guideline sentence is reasonable, such a presumption is optional. In Gall, the Court explained that courts of appeals cannot apply a proportionality principle that would demand an increasingly strong justification the further the sentence varies from the advisory guidelines range. And in Kimbrough, the Court instructed that in sentencing, “courts may vary [from the Guidelines’ ranges] based solely on policy considerations, including disagreements with the Guidelines."

The Split in the Circuits as to whether the Ex Post Facto

Clause Applies to the Sentencing Guidelines, Post-Booker

Two circuits – the Seventh and the D.C. Circuit -- have reviewed whether the Ex Post Facto Clause still applies to the advisory Sentencing Guidelines. They each have arrived at different conclusions. In United States v. Demaree, 459 F.3d 791 (7th Cir. 2006), the defendant pled guilty to tax and wire fraud offenses, committed in the year 2000. The sentencing range under the 2000 version of the Guidelines was 18-24 months. The defendant was sentenced in 2004 to 30 months, after the District Court applied the 2004 Guidelines range of 27-33 months for her crimes. The Court commented at sentencing that if the 2000 version of the Guidelines were applicable, he would have only sentenced her to 27 months. On appeal, the government confessed error, but the Seventh Circuit affirmed the sentence. The Court stated:

“[T]he ex post facto clause should apply only to laws and regulations that bind rather than advise, a principle well established with reference to parole guidelines whose retroactive application is challenged under the ex post facto clause." Demaree, 459 F.3d at 795 (citations omitted).

The Circuit reasoned that if a Judge wanted to apply a more recent, harsher Guideline in sentencing the defendant, the Judge could always say that the sentence was not based on the more recent Guideline but that the Judge was imposing a sentence pursuant to 18 U.S.C. § 3553(a), and that the more recent Guideline was merely advising the Judge. Id.

In United States v. Turner, 548 F.3d 1094, 1100 (D.C. 2008), the D.C. Circuit rejected the Seventh Circuit’s holding in Demaree and observed that most Judges sentence within the Guidelines ranges after Booker. In Turner, the defendant was convicted of conspiracy to defraud the United States and bribery, which occurred in 2001. The 2001 version of the Guidelines provided for a Guidelines range of 21 to 27 months. The District Court, however, sentenced the defendant to 33 months pursuant to the 2006 version of the Guidelines, which raised the range to 33 to 41 months. The D.C. Circuit agreed with Turner that his sentence violated the Ex Post Facto Clause.

Although no other Circuits have decided whether retroactively applying the Guidelines violates the Ex Post Facto Clause, other Circuits have indicated their agreement with either the Seventh or D.C. Circuit. The First, Sixth, Eighth and Ninth Circuits have opined that an application of a current, harsher version of the Guidelines violates the Ex Post Facto Clause. See United States v. Gilman, 478 F. 3d 440 (1st Cir. 2007); United Statesv. Duane, 533 F.3d 441, 447 (6th Cir. 2008); United Statesv. Carter, 490 F.3d 641, 643 (8th Cir. 2007); United Statesv. Stevens, 462 F.3d 1169 (9th Cir. 2006). The Fifth Circuit agreed with the Seventh Circuit, reasoning that because the Guidelines are advisory post-Booker, there is no Ex Post Facto issue. United Statesv. Sanchez, 527 F.3d 463, 466 (5th Cir. 2008).

On January 25, 2010, the United States Supreme Court denied a writ for petition for certiorari in Hensley v. United States, 130 S. Ct. 1284 (2010), which presented the issue as to whether the retroactive application of the Sentencing Guidelines violates the Ex Post Facto Clause. The briefs concerning the petition for certiorari have been included in your materials.

Advice for the Practitioner

The DOJ’s policy of not recognizing an Ex Post Facto issue still remains in effect, despite the fact that several Circuits have ruled to the contrary. Thus, defense attorneys may be faced with a sentencing dispute regarding whether or not an Ex Post Facto violation exists when harsh, recently amended Guidelines are proposed by the government for application by the sentencing court.

Indeed, Professor Douglas A. Berman, author of the influential and encyclopedic Sentencing Law and Policy blog has stated that;

I continue to be surprised not only by the fact that the ex post facto issue remains unresolved five years after the Booker decision, but also by the fact that it seems to be so rarely litigated or even addressed. My sense is that most districts and circuit [courts] continue to operate as if ex post facto issues still limit the application of revised guidelines, though I have always been instinctually drawn to the reasoning of Rodarte-Vasquez, Demaree, and Barton. See,

It is important to recognize that there is an inherent appeal to the argument that advisory Guidelines render Ex Post Facto concerns a dead letter. When defense attorneys fail to account for this appeal and simply rely on past practice it can result in disastrous consequences for their clients at sentence. Thus, defense attorneys should try to get out in front of the issue at the earliest possible time. Despite current DOJ policy it is important to try to persuade prosecutors that there are unique, fact specific reasons why this particular client’s case should not be subject to the blanket policy. For example, if there were prior related proceedings in which others received more lenient treatment under earlier Guidelines, a powerful and compelling fairness argument can be made. If all the events, witnesses, proof, policies and other facts at issue were exclusively time specific, this can provide further justification for treatment outside of blanket policy.

Finally, if the government refuses to agree to the application of earlier Guidelines to avoid an Ex Post Facto problem, the Department of Probation may be amenable to the appropriate legal and equitable arguments. It is entirely possible that because of the pre-existing practice of identifying and avoiding Ex Post Facto problems, probation officers will be allies in the effort to have the court rule in favor of the application of less severe earlier Guidelines. Obviously, not only lobbying in person, but also written suggestions, and objections to the PSR is the proper and most effective manner in which to proceed.

Ultimately, it is important to try to persuade the sentencing court that despite the change in Guidelines, Ex Post Facto application remains a problem of constitutional dimension. Hopefully, the cases discussed here and the enclosed briefs setting forth the issues in detail will provide a sound and solid basis for counsel to press this important issue.

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