The guidelines are advisory, except not really--Fourth Circuit holds the Ex Post Facto Clause still applies

Kirsten E. Small

The Fourth Circuit issued two published opinions yesterday. In United States v. Roe, No. 08-5203, the majority found sufficient evidence to support Roe's conviction for impersonating a federal police officer, even though he was a federal security officer with arrest authority (albeit one out of his jurisdiction at the time of the alleged impersonation). Judge Gregory dissented.

Although Roe is certainly worth a perusal, the far more intersting case is United States v. Lewis, No. 09-4343, in which Judge King, joined by Judge Gregory, held that the Ex Post Facto Clause applies to the post-Booker advisory guidelines. Judge Goodwin dissented.

Those familiar with federal sentencing law will recall that in 2000, the Supreme Court held in Apprendi v. New Jersey that all facts necessary to the imposition of a certain sentence must be admitted by the defendant or proved to a jury beyond a reasonable doubt. Subsequently, in United States v. Booker, the Court held that a mandatory guidelines regime was inconsistent with the Sixth Amendment as interpreted by Apprendi, and declared them advisory.

Now, back to Lewis. Mr. Lewis was arrested for felon-in-possession in May 2006, at which time the applicable guideline range for his offense was 21-27 months. By the time Lewis was sentenced in 1998, however, the guidelines had been amended and the applicable guideline range was 41-51 months. Concluding that application of the amended guidelines would result in a retroactive increase in punishment, in violation of the Ex Post Facto Clause, the district court sentenced Lewis to 27 months imprisonment. The government appealed.

The majority affirmed, concluding that even though the guidelines are no longer "law," they "represent the crucial starting point, as well as the initial benchmark, for the regimented sentencing process." Slip op. at 10. Therefore, there was a "significant risk" that application of the amended guidelines would result in increased punishment, and therefore their application would violate the Ex Post Facto Clause. Judge Goodwin dissented, noting that if the guidelines do not have the force of law, then application of an amended guideline cannot possibly violate the Ex Post Facto Clause.

The majority cannot possibly be correct. If the guidelines are not "law" for the purposes of the Sixth Amendment, how then can they be "law" for purposes of the Ex Post Facto Clause? Of course they cannot, but the majority does not seriously dispute this. Instead, the majority ignores the clear limitation of the Clause to "laws" that retroactively increase punishment, holding that the controlling criterion for the Ex Post Facto analysis is whether there is a significant risk of increased punishment.

The case the majority relies on for its "significant risk" test, Garner v. Jones, 529 U.S. 244 (2000), does not support such a fundamental change in the jurisprudence of the Ex Post Facto Clause. Garner involved an extension of time (from 3 to 8 years) between parole hearings for certain offenders. The Court held that whether such an extension on its face violated the Ex Post Facto Clause depended upon whether it created a significant risk that an inmate's punishment would be increased. Significantly, the Court did not back off of the premise that before the Clause applies, the change must be a law, or have the effect of law--as the rule change extending the time between parole hearings unquestionably did.

In reaching this holding, the Fourth Circuit joined the D.C. Circuit and rejected the position of the Seventh Circuit. I imagine a cert. grant will be coming on this issue sooner or later.