Booker: Ex post facto argument to avoid upward sentencing

A bad judge will hammer your client without mandatory guidelines. Do ex post facto concerns permit you to seek refuge in the old guidelines?

Working groups have been discussing ex post facto protections after Booker. Here is one of the best descriptions thus far, from AFPD David Mccolgin.

Note this could be the best of two worlds: Sixth Amendment protections for enhancement facts, and advisory for sentences below the guideline range.

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A group of us were just batting around the ex post facto argument that Steve referred to, and I am wondering what others think of it. It has taken me a while to even understand the argument (Felicia and Eric very helpfully explained it to me), but I think it goes something like this:

1) Blakely says the guideline max is the stat max for Apprendi purposes.

2) Blakely applies to the federal guidelines because by statute they are mandatory, not advisory.

3) Booker, in Breyer's remedial portion, has changed the statute by excising the mandatory language.

4) Booker therefore has effectively raised the stat max for Apprendi purposes from the guideline max to the max laid out in the statute.

5) Any increase in the penalty cannot be applied retroactively, under the ex post facto clause.

6) Therefore, for any defendants whose crimes were committed before Booker was decided, the guidelines are advisory to the extent that the judge can go below the guideline level, but ex post facto principles bar any sentence above the guideline max. -- And that guideline range must be calculated, under Stevens' majority opinion, based only on the facts proven to the jury and found beyond a reasonable doubt.

This argument would therefore be useful when we are afraid the judge will use Booker and the advisory nature of the guidelines to slam our clients.

-- David Mccolgin