U.S. v. Bell

• Decision Date: 05 May 1993
• Docket Number: No. 92-2058,92-2058
• Citation: 991 F.2d 1445
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Michelle Ann BELL, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1445

991 F.2d 1445

UNITED STATES of America, Plaintiff-Appellant, v. Michelle Ann BELL, Defendant-Appellee.

No. 92-2058.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 10, 1992.

Decided May 5, 1993.

Steven M. Colloton, Asst. U.S. Atty., Cedar Rapids, IA, for plaintiff-appellant.

Loraine S. Ingels, Cedar Rapids, IA, for defendant-appellee.

Before RICHARD S. ARNOLD, Chief Judge, FLOYD R. GIBSON, Senior Circuit Judge, and LOKEN, Circuit Judge.

FLOYD R. GIBSON, Senior Circuit Judge.

The government appeals the district court's ¹ decision to use the Sentencing Guidelines in effect when Michelle Bell committed her crime instead of the Guidelines in effect when she was sentenced. We affirm.

I. BACKGROUND

On July 1, 1991, Bell possessed a firearm, and on November 19, 1991, she pleaded guilty to one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The Probation Office applied the Sentencing Guidelines in effect on the date Bell committed her offense and calculated Bell's offense level as 10 by starting at an offense level of 12 based on U.S.S.G. § 2K2.1(a)(2) and subtracting 2 for Bell's acceptance of responsibility pursuant to U.S.S.G. § 3E1.1. Bell's criminal history score of VI resulted in a Guideline range of 24 to 30 months.

The government objected, contending that 18 U.S.C. § 3553(a)(4) required application of the Guidelines that went into effect on November 1, 1991. Under these new guidelines, Bell's offense level would have been 20 based on U.S.S.G. 2K2.1(a)(4); to this, four more levels would have been added based on U.S.S.G. 2K2.1(b)(5), then two levels subtracted for Bell's acceptance of responsibility, resulting in an adjusted offense level of twenty-two. Based on Bell's criminal history score of VI, the new guidelines would have generated a sentencing range of 84-125 months. ²

The district court, after carefully considering the government's objections, decided that applying the Guidelines in effect at the time of sentencing would violate the ex post facto clause of the Constitution and therefore applied the Guidelines in effect at the time Bell committed the offense. United States v. Bell, 788 F.Supp. 413, 422 (N.D.Iowa 1992). ³ The government appeals.

II. DISCUSSION

A.

The parties dispute whether this court has already addressed the ex post facto clause's application to the Sentencing Guidelines. We first confronted this issue in United States v. Swanger, 919 F.2d 94 (8th Cir.1990) (per curiam), where we remanded to the district court for resentencing with instructions to use the Guidelines in effect at the time the crime was committed. The opinion notes that the government conceded error, id. at 95, and at the same time states that "sentencing under the amended Guidelines violated the ex post facto clause of the Constitution." Id. (citing Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987) (an opinion by Justice O'Connor holding that retrospective application of Florida's sentencing guidelines violates the ex post facto clause)). Since Swanger was decided, this court has frequently reiterated its belief that retrospective application of the Guidelines implicates the ex post facto clause. E.g., United States v. Gullickson, 981 F.2d 344, 346 (8th Cir.1992); United States v. Johnston, 973 F.2d 611, 613 n. 2 (8th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1019, 122 L.Ed.2d 165 (1993); United States v. Edgar, 971 F.2d 89, 93 n. 4 (8th Cir.1992). ⁴

The government argues Swanger did not decide the issue because it was decided on the basis of the government's concession. It relies principally upon Young v. United States, 315 U.S. 257, 62 S.Ct. 510, 86 L.Ed. 832 (1942), where the Supreme Court stated that

[t]he considered judgment of the law enforcement officers that reversible error has been committed is entitled to great weight, but our judicial obligations compel us to examine independently the errors confessed. The public interest that a result be reached which promotes a well-ordered society is foremost in every criminal proceeding.... [O]ur judgments are precedents, and the proper administration of the criminal law cannot be left merely to the stipulation of parties.

315 U.S. at 258-59, 62 S.Ct. at 511 (citations omitted). However, the Court went on to discuss the legal issues involved and arrived at a holding that represents unquestioned precedential value. Thus, Young stands for the proposition that courts should not announce rules of law based solely upon a confession of error by one of the parties. If a case is to be disposed of based solely upon a confession of error, the court should clearly indicate that it is not announcing a rule of law. Cf. Petite v. United States, 361 U.S. 529, 531, 80 S.Ct. 450, 451, 4 L.Ed.2d 490 (1960) (per curiam) (case remanded based on government's confession of error without "remotely intimating in any degree an opinion on the question [presented to the Court.]").

The government would have us believe the Swanger court did not conduct an independent examination of the legal issues involved simply because the court's discussion was brief and did not address several arguments that have been raised in this case. We reject the government's position because the Swanger court fully stated the issue and held that, under the facts presented, there was a violation of the ex post facto clause. We of course are bound by Swanger and are in full agreement with its holding that, in a situation such as the one at bar, the ex post facto clause is violated if the later, more onerous Guideline is applied.

B.

Although the outcome in this case is governed by our decision in Swanger, we think it useful to expound upon that decision and further explain why we believe the retroactive application of harsher Guidelines violates the ex post facto clause.

Article I, section 9 of the Constitution prohibits Congress from passing ex post facto laws. The implications of this clause are unusually clear:

"It is settled, by decisions of [the Supreme] Court so well known that their citation may be dispensed with, that any statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto."

Collins v. Youngblood, 497 U.S. 37, 42, 110 S.Ct. 2715, 2719, 111 L.Ed.2d 30 (1990) (quoting Beazell v. Ohio, 269 U.S. 167, 169-70, 46 S.Ct. 68, 68, 70 L.Ed. 216 (1925)) (emphasis added). ⁵ There can be no serious doubt that Bell's punishment was made more burdensome after her crime was committed. At the time Bell's crime was committed, the district court could not have imposed a sentence greater than thirty months. See United States v. Cox, 921 F.2d 772, 774 (8th Cir.1990) (court cannot depart upward based on its belief the Guideline-based sentence is too lenient). If the Guidelines in effect at the time of Bell's sentencing are used, the district court would have to impose a minimum sentence of eighty-four months. ⁶ This unquestionably constitutes additional punishment. The ex post facto clause does not apply to changes in "procedures by which a criminal case is adjudicated, as opposed to changes in the substantive law of crimes." Collins, 497 U.S. at 45, 110 S.Ct. at 2720. However, this change in the Guidelines "changes the legal consequences of acts committed before the provision's effective date," and "it is the effect, not the form, of the law that determines whether it is ex post facto." Weaver v. Graham, 450 U.S. 24, 31, 101 S.Ct. 960, 965, 67 L.Ed.2d 17 (1981) (footnote omitted); therefore the change causes the precise effect the ex post facto clause is designed to guard against.

The focus of the government's position is that the ex post facto clause does not apply because 1) the Commission is an extension of the judicial, not the legislative, branch, and 2) the Guidelines are not laws within the meaning of the ex post facto clause. We reject both contentions.

1. The Commission's Status as a "Judicial Agency"

The government contends the ex post facto clause does not apply to the Commission because it is a judicial agency and because the Supreme Court has held that "[t]he Ex Post Facto Clause is a limitation upon the powers of the Legislature, see Calder v. Bull, 3 [U.S.] Dall. 386 (1798), and does not of its own force apply to the Judicial Branch of government." Marks v. United States, 430 U.S. 188, 191, 97 S.Ct. 990, 992, 51 L.Ed.2d 260 (1977) (emphasis added). Though the government reads this statement broadly to bar application of the ex post facto clause to actions of judicial agencies (such as the Commission), we do not do so for two reasons. First, the quoted sentence does not say the clause never applies to actions of the judicial branch; it merely says it does not do so "of its own force." Here, the actions of the judicial branch (through the Commission) have been augmented by the legislature in that the Guidelines promulgated by the Commission are binding upon all federal courts; thus, the actions of the Commission are incorporated into the law of this nation. Congress cannot avoid the proscriptions of the ex post facto clause simply by delegating its lawmaking function to a judicial agency and claiming the result is insulated from the constitutional limitations on its legislative powers. Yamamoto v. United States Parole Comm'n, 794 F.2d 1295, 1300 (8th Cir.1986) (per curiam); see also Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 328-29, 18 L.Ed. 356 (1866) (finding parts of Missouri Constitution violative of ex post facto clause because "as the State, had she attempted the course supposed, would have failed, it must follow that any other mode producing the same result must equally fail.") (quotation on page 329). Indeed, the very...