U.S. v. Doyle

• Decision Date: 24 June 2009
• Docket Number: Case No. 2:07CR00004.
• Citation: 621 F.Supp.2d 345
• Parties: UNITED STATES of America v. Robert Franklin DOYLE, Jr., Defendant.
• Court: U.S. District Court — Western District of Virginia

621 F.Supp.2d 345

UNITED STATES of America v. Robert Franklin DOYLE, Jr., Defendant.

Case No. 2:07CR00004.

United States District Court, W.D. Virginia, Big Stone Gap Division.

June 24, 2009.

Jennifer R. Bockhorst, Assistant United States Attorney, Abingdon, VA, and Samuel E. Fishel, IV, Special Assistant United States Attorney, Richmond, VA, for United States.

John E. Jessee, Jessee & Read, P.C., Abingdon, VA, for Defendant.

OPINION

JAMES P. JONES, Chief Judge.

In this criminal case, I find that I must reference the sentencing guidelines in effect on the date of the offense because application of the current guidelines in this case would violate the Ex Post Facto Clause of the Constitution.

I

The defendant Robert Franklin Doyle, Jr., was convicted by a jury of knowingly receiving and knowingly possessing child pornography in violation of 18 U.S.C.A. §§ 2252A(a)(2)(A), (a)(5)(B), and (b)(2) (West Supp.2008) (Counts One and Two), and knowingly transporting child pornography in violation of 18 U.S.C.A. §§ 2252A(a)(1) and (b)(1) (West Supp. 2008) (Counts Three, Four, and Five). I denied the defendant's post-trial motions for judgment of acquittal and for a new trial. United States v. Doyle, 621 F.Supp.2d 337 (W.D.Va.2009). Prior to sentencing, the government objected to the conclusion in the Presentence Investigation Report ("PSR") that use of the 2008 Guidelines Manual would violate the Ex Post Facto Clause of the Constitution. The probation officer instead applied the 2003 Guidelines Manual, which was the manual in effect on the date of the defendant's offenses. See U.S. Sentencing Guidelines Manual ("U.S.S.G.") § 1B1.11(b)(1) (2008).

For the reasons explained below, I find that application of the 2008 guidelines would violate the Ex Post Facto Clause in this case; therefore, I must calculate the defendant's guidelines range according to the 2003 Guidelines Manual in effect on the date of his offenses of conviction.

II

The Ex Post Facto Clause, U.S. Const. art. I, § 9, cl. 3, states that "No . . . ex post facto Law shall be passed." See also art. I, § 10, cl. 1. The framers included this provision in the Constitution to serve two purposes: (1) "to assure that federal and state legislatures were restrained from enacting arbitrary or vindictive legislation," and (2) to "give fair warning" of legislative enactments' effect and "permit individuals to rely on their meaning until explicitly changed." Miller v. Florida, 482 U.S. 423, 429-30, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987) (citing Calder v. Bull, 3 Dall. 386, 388-89, 1 L.Ed. 648 (1789)) (internal quote omitted). The Ex Post Facto Clause prohibits the retroactive application of "[e]very law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed." Miller, 482 U.S. at 429, 107 S.Ct. 2446 (quoting Calder, 3 Dall. at 390, 1 L.Ed. 648); see also Garner v. Jones, 529 U.S. 244, 249, 120 S.Ct. 1362, 146 L.Ed.2d 236 (2000) ("One function of the Ex Post Facto Clause is to bar enactments which, by retroactive operation, increase the punishment for a crime after its commission.").

In Miller v. Florida, the Supreme Court held that it was a violation of the Ex Post Facto Clause for Florida to apply its updated sentencing guidelines where the new guidelines range would be lengthier than the guidelines in effect at the time of the offense. The court reasoned that the law was ex post facto because it was retrospective and it disadvantaged the offender affected by it. Miller, 482 U.S. at 430, 107 S.Ct. 2446. Every circuit court, including the Fourth Circuit, thereafter concluded that the federal sentencing guidelines were held to the same standard. See, e.g., United States v. Morrow, 925 F.2d 779, 782-83 (4th Cir.1991). U.S.S.G. § 1B1.11 states that the guidelines in effect at sentencing apply unless the court determines that application of the current guidelines would violate the Ex Post Facto Clause, in which case the guidelines in effect at the time of the offense apply.

Since the remedial opinion in United States v. Booker, 543 U.S. 220, 244-68, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), made the federal sentencing guidelines advisory, the continued existence of the ex post facto concern has been called into doubt. The Seventh Circuit held in United States v. Demaree, 459 F.3d 791, 795 (7th Cir.2006), that "the ex post facto clause should apply only to laws and regulations that bind rather than advise . . . ." Speaking for the court, Judge Posner reasoned that "the purpose of the clause is to protect people against . . . being punished more severely than their crime was punishable when committed . . . . not to enable criminals to calculate with precision the punishments that might be imposed on them." Id. at 793. He suggested that not every regulation traceable to Congress¹ that disadvantages a criminal defendant is thereby an ex post facto law. Id. at 794.

Judge Posner considered that a district judge's "choice of sentence, whether inside or outside the guideline range, is discretionary and subject therefore to only light appellate review. The applicable guideline nudges him toward the sentencing range, but his freedom to impose a reasonable sentence outside the range is unfettered." Id. at 795 (internal citations omitted). He noted further that even if a judge could not technically apply the current guidelines due to ex post facto concerns, the judge would still be influenced by the information embodied in the new guidelines when selecting a sentence consistent with 18 U.S.C.A. § 3553(a) (West Supp.2008). Id.

To the contrary, the D.C. Circuit recently held that ex post facto concerns continue to exist post-Booker. United States v. Turner, 548 F.3d 1094, 1100 (D.C.Cir. 2008). For the court, Judge Randolph reasoned that after Demaree, the Supreme Court confirmed that appellate courts may apply a presumption of reasonableness to a district court sentence within the guidelines. Id. at 1099 (citing Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007)). As a result, judges are more likely to sentence within the guidelines, and Sentencing Commission statistics show that most federal sentences fall within guidelines ranges even after Booker. Id.

Judge Randolph noted that regulation of discretion, such as the discretion of a parole board, does not foreclose an ex post facto claim. Id. at 1100. "It is enough that using the 2006 Guidelines created a substantial risk that Turner's sentence was more severe, thus resulting in a violation of the Ex Post Facto Clause." Id.

Several other circuits have continued to apply the Ex Post Facto Clause to the advisory guidelines without directly addressing the impact of Booker. See United States v. Gilman, 478 F.3d 440, 449 (1st Cir.2007) ("Although we note that the Court of Appeals for the Seventh Circuit has concluded that Booker's ruling that the guidelines are advisory rather than mandatory carries with it the elimination of ex post facto concerns, the issue is doubtful in this circuit.") (internal citation omitted); United States v. Wood, 486 F.3d 781, 790-91 (3d Cir.2007) (finding plain error where government conceded guidelines in effect on date of offense should have been applied); United States v. Duane, 533 F.3d 441, 446-47 (6th Cir.2008) ("assum[ing] arguendo that a retroactive change to the Guidelines could implicate the Ex Post Facto Clause"); United States v. Carter, 490 F.3d 641, 643 (8th Cir.2007) (addressing defendant's ex post facto claim, but noting the decision in Demaree); United States v. Rising Sun, 522 F.3d 989, 992 n. 1 (9th Cir.2008) (noting that district court was correct to apply guidelines in effect on date of offense to avoid ex post facto violation).

The law in the Fourth Circuit is uncertain. The Fourth Circuit has assumed that the Ex Post Facto Clause still applies post-Booker. See United States v. Sinclair, 293 Fed.Appx. 235, 236 (4th Cir. 2008) (unpublished); United States v. Iskander, 407 F.3d 232, 242 n. 8 (4th Cir. 2005). But when the issue was presented in United States v. Myers, 553 F.3d 328 (4th Cir.2009), the court avoided deciding it. See id. at 333 n. 2 (noting that it need not address government's alternate theory based on Demaree because enhancement from 2006 guidelines also would have applied under 2005 guidelines in effect at time of offense). At least one district court in this circuit has found that the Ex Post Facto Clause still applies post-Booker. United States v. Lewis, 603 F.Supp.2d 874, 879 (E.D.Va.2009).

After due consideration, I find that the advisory guidelines still implicate the Ex Post Facto Clause.

There are two critical elements of a viable ex post facto claim. First, the law at issue "must be retrospective, that is, it must apply to events occurring before its enactment." Miller, 482 U.S. at 430, 107 S.Ct. 2446 (quoting Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981)). Second, it must "increase[] the penalty by which a crime is punishable." California Dep't of Corr. v. Morales, 514 U.S. 499, 506 n. 3, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995). Related to the second element, the Supreme Court has held that "no ex post facto violation occurs if a change does not alter `substantial personal rights,' but merely changes `modes of procedure which do not affect matters of substance.'" Miller, 482 U.S. at 430, 107 S.Ct. 2446 (quoting Dobbert v. Florida, 432 U.S. 282, 293, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977)).

A law is retrospective if it "appl[ies] to events occurring before its enactment." Miller, 482 U.S. at 430, 107 S.Ct. 2446. Here, as in Miller, "[a]pplication of the revised guidelines law in [the defendant's] case clearly satisfies this standard." Id. In Miller, the state argued that the change in the guidelines was not retrospective because the sentencing statute "on its face provides for continuous review and recommendation of changes to the guidelines." Id. at...