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 Post Facto Clause. It then adopted the D.C. Circuit’s standard, under which there can be an ex post facto violation if the defendant can show that using the amended guideline “created a substantial risk that” the sentence would be more severe. The court found this standard to be “faithful to Supreme Court jurisprudence explaining that the Clause protects against a post-offense change that ‘creates a significant risk’ of increasing the punishment.” But this standard does not “invalidate every sentence imposed after a Guidelines range has been increased after the date of the offense”; it merely recognizes that there may be circumstances “where an amended Guidelines can influence a sentence that violates the Ex Post Facto Clause.”

Here, the “substantial risk” standard does not benefit Ortiz. He received a sentence well below the bottom of the sentencing range, thus there was “no risk at all” that the sentencing judge would have imposed an even lower sentence had she applied the unamended guideline.