Archive | ex post facto

Saturday, December 18th, 2010

Plain Terror

United States v. Marcus, No. 07-4005-cr (2d Cir. December 7, 2010) (Calabresi, Straub, Wesley, CJJ)

This is Marcus’ second go-round in the circuit. He won the first time, in August of 2008, (see “Sex Post Facto”, posted August 18, 2008). The government got cert, and the Supreme Court reversed, holding that the first panel had used an incorrect plain error standard. In this decision, on remand from the Supremes, Marcus had only a partial win.

The underlying conduct is particularly disturbing. From October of 1998 through June of 1999, Marcus was in a consensual, albeit kinky, sexual relationship with “Jodi.” This nature of the relationship changed in October 1999 when Jodi refused to recruit her sister to become one of Marcus’ “sex slaves.” In response, Marcus “punished” Jodi severely, and began to terrorize her regularly. With this, the relationship became nonconsensual.

In January of 2000, Marcus directed Jodi to move …

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Categories: ex post facto, plain error, Uncategorized

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Sunday, September 5th, 2010

Max Facto

United States v. Ortiz, No. 08-2648-cr (2d Cir. September 1, 2010) (Newman, Pooler, CJJ, Rakoff, DJ)

Closing a an open question, the here court holds that the use of a more onerous guideline that is promulgated after the date of the offense can violate the Ex Post Facto Clause. But it also concludes that in this particular case there was no ex post facto violation.

At Ortiz’ sentencing for firearms and narcotics offenses, the district court used the amended guideline for an obliterated serial number – the Sentencing Commission had increased the enhancement from two to four levels – even though that amendment was adopted after the date of his offense. On appeal, for the first time, he argued that this violated the Ex Post Facto Clause.

The circuit noted that there is a circuit split on whether the retrospective application of a harsher, but non-mandatory, guideline implicates the Ex …

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Categories: ex post facto, Uncategorized

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Saturday, August 21st, 2010

Sorry, Right Number

United States v. Kumar, No. 06-5482-cr (2d Cir. August 12, 2010) (Walker, Sacks, Livingston, CJJ)

Sanjay Kumar and Stephen Richards, officers as a company called Computer Associates, engineered a huge accounting fraud that ended in October of 2000. Had that been the end of the story, their sentence would have been calculated under the November 1998 Guideline Manual (for obscure political reasons there is no November 1999 Manual), and their offense level would have been 30. However, the defendants engaged in additional criminal conduct associated with the government’s investigation of the accounting fraud – obstruction of justice, mainly – between 2002 and 2004.

Eventually, they pled guilty to everything and, in 2006, were sentenced under the November 2005 Guideline manual, which was in effect at the time, and under which the offense level for the fraud offenses had increased dramatically – from 30 to 50.

In this opinion, a divided …

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Categories: ex post facto, one-book rule, Uncategorized

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Sunday, March 21st, 2010

An Unwelcome Edition

United States v. Gilmore, No. 07-0349-cr (2d Cir. March 17, 2010)
(Leval, Katzmann, Livingston, CJJ)

In 2005, Gilmore pled guilty to producing child pornography. He faced a fifteen-year mandatory minimum and a thirty-year maximum sentence. His plea agreement included a non-binding estimate that indicated that his guideline sentence was life imprisonment but that, since this exceeded the statutory maximum, the applicable guideline sentence would be thirty years. This estimate was based on the 2004 Edition of the guideline manual, the version in effect at the time of Gilmore’s sentencing, but the government later realized that this was erroneous because it resulted in a harsher sentence than the 2003 Edition, which was in effect at the time of the offense.

Gilmore’s PSR used the 2003 Edition, under which the guideline range was ninety-seven to 121 months’ imprisonment. Since this was less than the mandatory minimum, the PSR concluded that the guideline …

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Categories: ex post facto, Uncategorized

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Wednesday, February 25th, 2009

Let The Burglar Beware

United States v. Johnson, No. 08-2296-cr (2d Cir. February 25, 2009) (Cabranes, Wesley, CJJ, Korman, DJ) (per curiam)

Defendant Johnson stole a firearm during a burglary, and pled guilty to being a felon in possession of that same gun. At sentencing, he received a four-level enhancement for possessing it in connection with “another felony,” the burglary. The district court based the enhancement on a 2006 application note that provides that the “another felony” enhancement applies where a defendant finds and takes a firearm during a burglary. Johnson argued that this violated the Ex Post Facto clause, since his offense occurred before the application note was promulgated.

The circuit affirmed. The application note was added to the guidelines to resolve a circuit split on the applicability of the enhancement, and was intended merely to “clarify” that it applied to burglaries involving the theft of firearms. The note neither “altered the law …

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Categories: ex post facto, Uncategorized

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Monday, May 5th, 2008

Impact Victim

United States v. Eberhard, No. 05-3431-cr (2d Cir. May 5, 2008) (Jacobs, Calabresi, Sack, CJJ)

Todd Eberhard, a former stock broker, pled guilty to various fraud charges. Under his plea agreement, the stipulated guideline range was 97 to 121 months’ imprisonment. The presentence report added a 4-level aggravating role enhancement, but then recommended a below-guidelines 96-month sentence. Judge Sweet issued a pre-sentencing opinion indicating that he would impose a 151-month sentence. But, at sentencing, after hearing from victims, who asserted their right to address the court under 18 U.S.C. § 3771(a) (2004), which was enacted after Eberhard pled guilty, the judge imposed a 160-month sentence.

The circuit affirmed the sentence. First, it rejected an ex post facto challenge to the application of § 3771(a). District courts have always had the discretion to consider victim statements, and there is nothing about the new legislation – which requires district courts to hear …

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Categories: due process, ex post facto, Uncategorized, victim impact

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