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 sentence was fifteen years.
At sentencing, however, the district court upwardly departed to thirty years due to the nature of the conduct. On Gilmore’s first appeal, the circuit vacated the sentence on the ground that the district court did not give Gilmore notice of its intent to impose an above-guideline sentence.
On remand, the district court imposed the same sentence. It gave several reasons for the sentence, including its recognition that the guideline manual in effect at the time of sentencing recommended a life sentence. While the district court found no ex post facto problem in looking to the 2004 Edition, it made clear that the guideline range it was using came from the 2003 Edition and that the sentence it selected was a non-guideline sentence under § 3553(a). The court noted that the fact that the 2004 Edition would have recommended a life sentence “support[ed] the reasonableness” of the thirty-year term.
On this, Gilmore’s second appeal, the circuit affirmed. Even though the government joined in the request for a remand on this point, the circuit found no violation of the Ex Post Facto Clause in the district court’s reference to the 2004 Edition for guidance. The court ducked the thornier issue of whether the Ex Post Facto Clause even applies to the guidelines in the wake of Booker, and instead agreed with the district court that there was no violation in looking to a later edition of the guideline manual to evaluate the seriousness of Gilmore’s offense and the reasonableness of the sentence imposed. Here, the district court “explicitly recognized” that the 2003 Edition applied and its reference to the 2004 Edition “was not a part of its analysis of” Gilmore’s guideline range. Since the 2004 Edition was not applied here, merely consulted, there was no ex post facto problem.