Eleventh Circuit Holds That Even Though Federal Sentencing Guidelines Are Advisory, Applying A Harsher Guideline That Was Not in Effect At the Time Of The Crime Can Create Ex Post Facto Concerns

In 2005, the United States Supreme issued its landmark decision in the federal criminal case of United States v. Booker. Among other things, the Court in Booker ruled that the federal sentencing Guidelines are no longer mandatory, but are instead advisory. Before Booker, it was undisputed that courts were required to apply the Guidelines that were in effect when the federal crime at issue was committed, if applying a later Guideline created Ex Post Facto concerns. In other words, if the Guideline in effect on the date of a sentencing established a harsher Guideline range, the sentencing court was required to apply the more lenient Guideline that was in effect when the crime was committed. An example that comes to mind arises in federal, white collar cases. For instance, under the Guideline that applied up until October 31, 2002, the base offense level in white collar cases was 6, rather than 7. For this reason, under the law as it existed before Booker, courts in white collar cases were required to use the Guideline with the base offense level of 6, as long as the crime was completed prior to the effective date of Guideline that changed the base offense from 6 to 7.

When Booker was decided, however, some people (mostly prosecutors) claimed that since the Guidelines were no longer mandatory, the Ex Post Facto principles discussed above no longer applied. According to these individuals, courts were now free to apply the Guideline in existence on the date of the sentencing, even when the Guideline in effect when the crime was committed provided for a more lenient sentencing range.

Recently, the Eleventh Circuit squarely addressed this issue for the first time, and in our view, reached the right result (for the most part). In Wetherwald, (a federal white collar case), the defendants were convicted of defrauding investors out of millions of dollars. On appeal, the defendants argued that the trial court erred by applying the federal sentencing Guidelines that were in effect on the day of sentencing, rather than the more lenient Guidelines that were in place when the crimes at issue were committed.

Importantly, although the Eleventh Circuit rejected the defendants’ contention that their sentences should be reversed, in doing so, it reaffirmed the principle that requires sentencing courts to apply the Guideline that is in effect when the crime is committed. In its decision, the court recognized that other federal courts of appeal are currently split on this issue. For instance, the Seventh Circuit has concluded that the “the Ex Post Facto Clause no longer poses a problem, as it applies ‘only to laws and regulations that bind rather than advise.'” The D.C. Circuit, however, has “squarely rejected this position, finding that the application of a harsher Guidelines range in place at sentencing presents a constitutional problem.”

In the end, the Eleventh Circuit adopted the view of the D.C. Circuit, stating that this view “is consistent both with our interpretation of Supreme Court precedent and this circuit’s jurisprudence . . . .” Although the court declined to reverse the defendant’s sentences in Wetherwald, it recognized that all of the respective sentences were lower than the Guideline that was in place when the crime was committed. Moreover, the court recognized that in the future (and this is the part that gives us some concern), it would “only find an Ex Post Facto Clause violation when a district judge’s selection of a Guidelines range in effect at the time of sentencing rather than that at the time of the offense results in a substantial risk of harsher punishment.” The opinion in Wetherwald is found here.