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.