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First Circuit discusses (and sort-of dodges) post-Booker ex post facto issue

By Douglas A. Berman

Today through a notable opinion in US v. Rodriguez, No. 09-1429 (1st Cir. Dec. 28, 2010) (available here), a First Circuit panel thoughtfully discusses and then kind-of dodges the (circuit-splitting) issue of whether the Ex Post Facto clause limits application of the latest version of the federal sentencing guidelines in a post-Booker advisory sentencing world.  Here are snippets of the Rodriguez opinion: Congress tells them to use the Guidelines in force at the time of sentencing. See 18 U.S.C. § 3553(a)(4)(A).  But if doing that would infract the Constitution's ex post facto clause, the Commission directs them to use the edition in effect on the day the defendant committed the crime. See USSG § 1B1.11(b)(1) (policy statement).   We too tell judges to use the old version if the new one raises ex post facto concerns...continue to full post

Full post as published by Sentencing Law and Policy on December 28, 2010 (boomark / email).