US v. Bell

• Decision Date: 30 March 1992
• Docket Number: No. CR 91-2016.,CR 91-2016.
• Citation: 788 F. Supp. 413
• Parties: UNITED STATES of America, Plaintiff, v. Michelle Ann BELL, Defendant.
• Court: U.S. District Court — Northern District of Iowa

788 F. Supp. 413

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

No. CR 91-2016.

United States District Court, N.D. Iowa, E.D.

March 30, 1992.

Steven M. Colloton, Richard L. Murphy, Asst. U.S. Attys., Cedar Rapids, Iowa, for plaintiff.

Lorraine Snead Ingels, Klinger, Robinson, McCuskey & Ford, Cedar Rapids, Iowa, for defendant.

ORDER

DAVID R. HANSEN, Circuit Judge, Sitting by Designation.

This matter is before the court on plaintiff's sentencing memorandum, filed March 5, 1992. Defendant filed her memorandum of authorities regarding ex post facto sentencing issue on March 13, 1992. On March 25, 1992, this court entered an order accepting the United States Sentencing Commission's amicus curiae brief as amended, filed March 20, 1992. The Sentencing Commission generally agrees with plaintiff's position and raises additional concerns regarding the administrative and policy implications of this court's ruling on the issue presented.

A. BACKGROUND

On November 19, 1991, defendant pled guilty to one count of being a felon in possession of a firearm, on or about July 2, 1991, in violation of 18 U.S.C. § 922(g)(1). Under the Sentencing Guideline in effect on July 2, 1991, defendant's base offense level would be 12. See U.S.S.G. § 2K2.1(a)(2) (Nov.1990) (base offense level of "12, if the defendant is convicted under 18 U.S.C. § 922(g)"). On November 1, 1991, several amendments to Sentencing Guideline § 2K2.1 took effect. The United States asserts that under the amended Guideline, defendant's base offense level would be 20. See U.S.S.G. § 2K2.1(a)(4)(A) (Nov.1991) (base offense level of "20, if the defendant had one prior felony conviction of either a crime of violence or a controlled substance offense."). Further, the November 1, 1991 amendments added a provision for an additional four level upward adjustment if the defendant possessed the firearm with "knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense." U.S.S.G. § 2K2.1(b)(5) (Nov.1991). The government states that it intends to request this adjustment.

The previous policy of the Department of Justice has been "that the guideline in effect on the date the offense was committed should be used instead of a newer guideline if the new guideline increases the guideline sentence above that which was in effect on the date of the offense." U.S. Dep't of Justice, Prosecutors Handbook on Sentencing Guidelines, 72 (1987). The Department has reevaluated that position and has authorized plaintiff to request the court to follow 18 U.S.C. § 3553(a)(4), which provides that the sentencing judge should consider the Guidelines "in effect on the date the defendant is sentenced."

Neither Congress nor the states may pass any "ex post facto Law." U.S. Const. art. 1, § 9, cl. 3; § 10, cl. 1. The Ex Post Facto Clause includes, inter alia, "`every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.'" Miller v. Florida, 482 U.S. 423, 429, 107 S.Ct. 2446, 2450, 96 L.Ed.2d 351 (1987) (quoting Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648 (1798)). The central concern of this aspect of the Ex Post Facto Clause is for "`the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated.'" Miller, 482 U.S. at 430, 107 S.Ct. at 2451 (quoting Weaver v. Graham, 450 U.S. 24, 30, 101 S.Ct. 960, 965, 67 L.Ed.2d 17 (1981)).

The issue presented is whether the application of the November 1, 1991 amendments to U.S.S.G. § 2K2.1 to defendant would violate the Ex Post Facto Clause.

B. CIRCUIT CASE LAW

The court begins with an examination of the cases decided by the circuit courts of appeals which address the relationship between the Guidelines and the Ex Post Facto Clause. In United States v. Swanger, 919 F.2d 94 (8th Cir.1990) (per curiam), the district court had sentenced Swanger under the Guidelines in effect at the time of sentencing, which provided for an offense level greater than provided for by the Guidelines in effect at the time of his offense. The government "conceded error and agreed that the case should be remanded for resentencing." Id. at 95. The court stated that "under these circumstances, sentencing under the amended Guidelines violated the ex post facto clause of the Constitution." Id. at 95 (citing Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987), and United States v. Suarez, 911 F.2d 1016, 1021 (5th Cir.1990)). See also United States v. Lenfesty, 923 F.2d 1293, 1299 (8th Cir.), cert. denied, ___ U.S. ___, 111 S.Ct. 1602, 113 L.Ed.2d 665 (1991) ("Because the net sentencing range under the Guidelines in effect when Redinger sold crank was less than the net sentencing range of the Guidelines in effect at sentencing, the District Court properly began its calculations with the former, less harsh, range.").

All of the other circuits, except for the Federal Circuit, have stated, without much discussion, that the retroactive application of a Guideline that increases the sentence to be imposed violates the Ex Post Facto Clause. See United States v. Harotunian, 920 F.2d 1040, 1042 (1st Cir.1990) (applying amended guideline which increased base offense level by 4 would raise ex post facto concerns); United States v. Young, 932 F.2d 1035, 1038 n. 3 (2d Cir.1991); United States v. Kopp, 951 F.2d 521, 526 (3d Cir. 1991) (court generally applies Guidelines in effect at time of sentencing, "but where such retroactivity results in harsher penalties, Ex Post Facto Clause problems arise, and courts must apply the earlier version."); United States v. Morrow, 925 F.2d 779, 782-83 (4th Cir.1991); United States v. Suarez, 911 F.2d 1016, 1021-22 (5th Cir. 1990); United States v. Nagi, 947 F.2d 211, 213 n. 1 (6th Cir.1991), petition for cert. filed, No. 91-7564 (U.S. Mar. 9, 1992); United States v. Bradach, 949 F.2d 1461, 1465 n. 5 (7th Cir.1991); United States v. Sweeten, 933 F.2d 765, 772 (9th Cir.1991); United States v. Underwood, 938 F.2d 1086, 1090 (10th Cir.1991) ("The ex post facto clause prohibits retroactive application of a changed guideline if the change disadvantages the defendant."); United States v. Worthy, 915 F.2d 1514, 1516 n. 7 (11th Cir.1990) ("An amended guideline will not be applied if its effect would be to subject a defendant to an increased sentence."); United States v. Molina, 952 F.2d 514, 522-23 (D.C.Cir.1992) ("When an amendment to a Guideline increases the punishment imposed, the ex post facto clause of the Constitution prevents retroactive application of the amended Guideline to crimes committed prior to the effective date of the amendment."). Almost all of these cases cite to Miller v. Florida.

The only case suggesting (but not holding) that the Ex Post Facto Clause does not apply to the Sentencing Guidelines is United States v. Bader, 956 F.2d 708 (7th Cir. 1992).

Some courts have held or implied that the ex post facto clause of the Constitution requires courts to use the guidelines that were in effect on the date of the crime. To the extent these courts explain their conclusions — the opinions are brief, and some do not appear to recognize that they entail holding a statute unconstitutional — they equate a change in the guidelines with an increase in the punishment prescribed by law. Miller v. Florida ... shows that sentencing guidelines may be "laws" for purposes of the ex post facto clause. Still, it remains to determine how the laws have changed, and whether the particular change exceeds the constitutional constraint.

Bader, at 709 (citations omitted).

The government argues that this court need not follow the explicit words of the Eighth Circuit's decisions in Swanger and Lenfesty or the nearly unanimous views on this issue expressed by the other circuits, because all of these cases were decided either on the government's concession or are a sua sponte declaration not backed by reasoning and, thus, were not decided on each court's independent review of the constitutional issue. See Casey v. United States, 343 U.S. 808, 72 S.Ct. 999, 96 L.Ed. 1317 (1952) ("To accept in this case the Solicitor General's confession of error would not involve the establishment of any precedent."); United States v. LeMay, 952 F.2d 995, 998 n. 3 (8th Cir.1991). The court finds that it need not address the government's argument that these cases have no precedential value because, after examining the government's argument on the merits, the court concludes that ex post facto does apply to the Guidelines. The court does note that all of these cases, viewed collectively, constitute a strong statement by the courts of appeals (except perhaps for the Seventh Circuit) that, at first blush, the application of an amended Guideline resulting in the imposition of a greater sentence violates ex post facto.

C. EX POST FACTO AND THE JUDICIAL BRANCH

The government contends that the Ex Post Facto Clause does not apply to the judicial branch, and because the Sentencing Commission is a judicial branch agency, its actions are not subject to ex post facto analysis. Congress placed the Sentencing Commission in the judicial branch as an independent commission. 28 U.S.C. § 991(a). In Mistretta v. United States, 488 U.S. 361, 384-97, 109 S.Ct. 647, 661-67, 102 L.Ed.2d 714 (1989), the Court concluded that Congress's placement of the Commission in the judicial branch does not violate the principle of separation of powers. In Marks v. United States, 430 U.S. 188, 191, 97 S.Ct. 990, 992, 51 L.Ed.2d 260 (1977), the Court noted that while "the Ex Post Facto Clause is a limitation upon the powers of the Legislature, and does not of its own force apply to the Judicial Branch, ... the principle on which the Clause is based — the notion that persons have a right to fair warning of that conduct which will give rise to criminal penalties — is...