United States v. Sweeney

• Decision Date: 03 June 2010
• Docket Number: No. 08 Cr. 212(RJH).,08 Cr. 212(RJH).
• Parties: UNITED STATES, v. Brennan SWEENEY, Defendant.
• Court: U.S. District Court — Southern District of New York

715 F.Supp.2d 565

UNITED STATES,

v.Brennan SWEENEY, Defendant.

No. 08 Cr. 212(RJH).

United States District Court,S.D. New York.

June 3, 2010.

Jason Bradley Smith, U.S. Attorney, New York, NY, for United States.

MEMORANDUM OPINION

RICHARD J. HOLWELL, District Judge.

The ex post facto clause of the United States Constitution prohibits laws that “increase the punishment for a crime after its commission.” Garner v. Jones, 529 U.S. 244, 249, 120 S.Ct. 1362, 146 L.Ed.2d 236 (2000). ¹ Brennan Sweeney pleaded guilty in May 2009 to possessing and distributing child pornography. The FBI raided his apartment in October 2003, found child pornography on his computers, interviewed him, obtained a confession (Sweeney admitted to possessing over one thousand images of children), seized the computers, and left him in liberty. Four years later, in March 2008, they arrested him. The government offers no explanation for the delay. In the interim, while Sweeney was free, the law concerning punishment of his crimes changed. Under the United States Sentencing Guidelines (the “Guidelines”) in effect at the time he committed the crimes, his sentencing range would have been 27 to 33 months. U.S.S.G. § 2G2.2 (2002). But under the current version of the Guidelines, the applicable range is nearly three times higher-78 to 97 months. The difference results from a five-level increase in the base offense level for distribution of child pornography, see U.S.S.G. § 2G2.2(a) (2009), and a five-level enhancement created in 2003 for offenses involving 600 or more illegal images. Id. § 2G2.2(b)(7)(D). ² Federal statute requires application of the current Guidelines.

18 U.S.C. § 3553(a)(4)(A)(ii). The issue is whether that statute, as applied to Sweeney, is an unconstitutional ex post facto law.

Five years ago, before the Supreme Court decided United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), this question had a clear answer. Every Federal Circuit Court of Appeals had held that the ex post facto clause prohibited retrospective application of Guidelines amendments that increased the applicable sentencing range. See United States v. Seacott, 15 F.3d 1380, 1386 (7th Cir.1994); United States v. Schnell, 982 F.2d 216, 218 (7th Cir.1992) (collecting cases from every circuit). This unanimity flowed from a Supreme Court decision finding that Florida's sentencing guidelines, which were very similar to their federal counterparts, violated the ex post facto prohibition when applied retrospectively. See Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987). ³

With Booker, some things changed and some things did not. The decision rendered the Guidelines advisory by striking down the portions of the Sentencing Reform Act that required courts to impose sentence within the applicable Guidelines range. Booker, 543 U.S. at 259, 125 S.Ct. 738. In their new advisory guise, however, the Guidelines have influenced sentencing determinations to nearly the same extent as before Booker. Gordon Mehler, et al., Federal Criminal Practice 665 (10th ed. 2010) (“[S]entence lengths and the degree of adherence to the ‘advisory’ Guidelines have remained essentially what they were when the Guidelines were mandatory.”). Thus, while the Guidelines' formal strictures have changed radically, their effect has remained rather constant. The circuits have split on whether these developments change the ex post facto analysis. Compare United States v. Demaree, 459 F.3d 791, 795 (7th Cir.2006) (Posner, J.) (“We conclude that the ex post facto clause should apply only to laws and regulations that bind rather than advise ....); with United States v. Turner, 548 F.3d 1094, 1099-1100 (D.C.Cir.2008) ( “[U]sing the [later version of the] Guidelines created a substantial risk that Turner's sentence was more severe, thus resulting in a violation of the Ex Post Facto Clause.”). The Second Circuit has not decided the issue. See United States v. Gilmore, 599 F.3d 160, 166 n. 4 (2d Cir.2010) (“[T]he ex post facto consequences of relying on a later-enacted version of the Guidelines remains an open question.”). ⁴

The Miller case-the foundation for the circuits' pre- Booker consensus-is the logical place to start an analysis of Booker's ex post facto implications. At the time the defendant in Miller committed his crime, the Florida guidelines prescribed a sentencing range of 3 1/2 to 4 1/2 years. By the time he was sentenced, however, changes to the guidelines had increased that range to 5 1/2 to 7 years. Miller, 482 U.S. at 424, 107 S.Ct. 2446. The Court took a simple approach to the constitutional analysis. First, it explained that the purpose of the ex post facto prohibition is to guarantee “fair notice” of the punishment a crime will draw. Id. at 430, 107 S.Ct. 2446 (“[A]lmost from the outset, we have recognized that central to the ex post facto prohibition is a concern for ‘the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated.’ ”) (quoting Weaver v. Graham, 450 U.S. 24, 30, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981)). Next, the Court applied a two-part test “derived” from the notice principle: “to fall within the ex post facto prohibition ... the law ‘must be retrospective, that is, it must apply to events occurring before its enactment;’ and second, ‘it must disadvantage the offender affected by it.’ ” Id. (quoting Weaver, 450 U.S. at 29, 101 S.Ct. 960.). The Florida guidelines clearly met both elements. As applied to Miller, they were retrospective, because the 5 1/2 to 7 year range did not apply to his crime at the time he committed it. Id. at 430-31, 107 S.Ct. 2446. And the change plainly disadvantaged him: working from the new guidelines, the sentencing court had imposed a 7-year sentence-the top of the applicable range. Under the Florida system, sentences within the guidelines range were presumed reasonable and were not reviewable on appeal; non-guidelines sentences, on the other hand, required a written statement of “clear and convincing” reasons justifying departure. Thus, under the retrospective amendment, the 7-year sentence was presumptively reasonable and unreviewable, whereas under the guidelines in effect at the time of the crime, any sentence over 4 1/2 years would have required clear and convincing written justification. Id. at 432-33, 107 S.Ct. 2446. Judging by these features of the written law, the Court held that the retrospective amendment “substantially disadvantaged” Miller and therefore violated the ex post facto clause. Id.

This case is different than Miller in some respects. The federal Guidelines after Booker do not on their face demonstrate that a retrospective enhancement works to a defendant's “substantial disadvantage,” at least not to the same extent as the Florida guidelines. To be sure, the federal Guidelines remain the “starting point and the initial benchmark” for a federal sentence, and district courts are required to calculate and consider the applicable sentencing range. Gall v. United States, 552 U.S. 38, 50, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Nonetheless, the Guidelines are but one of many sentencing factors that must be considered, and district courts may not presume that a Guidelines sentence is reasonable. Id.; Nelson v. United States, --- U.S. ----, 129 S.Ct. 890, 172 L.Ed.2d 719 (2009) (reversing sentence where the district court concluded “unless there's a good reason in the [statutory sentencing] factors ... the Guidelines sentence is the reasonable sentence.”). As the Second Circuit recently observed, “[i]t is ... emphatically clear that the Guidelines are guidelines-that is, they are truly advisory.... District Judges are, as a result, generally free to impose sentences outside the recommended range.” United States v. Cavera, 550 F.3d 180, 189 (2d Cir.2008) (en banc). Facially, then, the Guidelines do not control sentencing results to the extent that the Florida guidelines at issue in Miller did.

As it turns out, however, “starting points and initial benchmarks” exert a gravitational pull that, though not legally prescribed, becomes obvious in application. At a negotiating table, the first offer frames the exchange, and in federal district court, sentences hew to the advisory Guidelines. This phenomenon is well-documented, ⁵ and the posture of this case bears further proof of its force. Under the current Guidelines, Sweeney's sentencing determination would start from a benchmark of 78-97 months. Under the 2002 version, the point of reference is 27-33 months. It is not controversial that these different benchmarks will, in all probability, produce different sentences; the government does not contest this proposition, and even those who opine that Booker cures the ex post facto problem would seem to acknowledge its truth. See Demaree, 459 F.3d at 794 (“Most federal sentences ... continue after Booker to be within the guidelines' sentencing ranges.”). This case turns, therefore, on whether a retrospective law falls within the ex post facto prohibition if it “substantially disadvantages” a defendant-or poses a “significant risk of increased punishment,” in the language of later Supreme Court cases ⁶ -in application, even if that effect does not flow ineluctably from the face of the law.

Two recent Supreme Court cases shed light on the issue. In California Dep't of Corr. v. Morales, 514 U.S. 499, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995), and Garner v. Jones, 529 U.S. 244, 120 S.Ct. 1362, 146 L.Ed.2d 236 (2000), the Court rejected ex post facto challenges to amendments to state parole rules that decreased the required frequency of parole hearings for certain inmates. The law at issue in Morales allowed the California parole board to hold hearings at intervals as wide as three years for inmates convicted of more than one crime involving loss of life, whereas the law at the time defendant...