Booker and the Ex Post Facto Clause
United States v. Shawndale L. Jamison, No. 05-1045 (July 20, 2005): At his plea, Mr. Jamison admitted to a small quantity of drugs, but at sentencing he disputed the larger amount of drugs put forward by the probation officer as relevant conduct. The district court did not grant Mr. Jamison a jury trial on this issue, but accepted the probation officer’s calculation of the weight of the drugs and imposed the sentence that this weight of drugs would produce under the guidelines. It justified this result by claining that it was treating the guidelines as advisory. (The Seventh Circuit’s opinion is not very clear as to the facts, but it appears from the docket sheet that the sentencing in this case took place after the Circuit opinion in Booker, but before the Supreme Court’s opinion.) This "advisory" use of the guidelines does not seem to have been the sort of advisory use later set forth in the Booker remedial opinion. Rather, the judge seems to have calculated the guidelines, not giving the defendant any Booker protections, and then imposed a sentence consistent with the guidelines, but in no way guided by the section 3553(a) factors.
Booker has made the guidelines advisory in a much different sense. Mr. Jamison could have sought relief on that basis, but that would have only put him back before a judge who was determined to give him a high sentence. Instead, Mr. Jamison argued that, since he committed his crime before the Supreme Court’s decision in Booker, he was entitled to be sentenced under mandatory guidelines. He further insisted that, in applying the guidelines, the judge should have granted him the constitutional rights established by the Booker merits opinion. It was, he claimed, a denial of due process and a violation of the ex post facto clause to base a sentence on advisory guidelines.
In a brief opinion, the Court ruled that Mr. Jamison had fair notice that dealing drugs was a crime and fair notice that he could face up to 20 years in prison. Although Booker certainly changed his exposure to punishment, it did not create a crime where none had existed and did not increase the maximum sentence. Receiving a sentence higher than an unadjusted guidelines sentence denied him neither due process nor the protection of the ex post facto clause. The Court joined the Fifth and the Eleventh Circuits in rejecting his argument. The Court did not give serious consideration to the argument that Booker certainly affected this defendant’s maximum sentence in this case. For the weight of drugs that he acknowledged were involved, the maximum sentence was proscribed by the guidelines and could go higher only if a jury found beyond a reasonable doubt that a higher amount was involved. In slighting this argument, the Court ignored the key teaching of Blakely and of Booker.
Jamison’s case raises still another question about the meaning of Booker that only the Supreme Court can definitively resolve. This issue was never presented to the Booker Court, probably since the Booker Court(s) took the case in such an unpredictable direction. Until the Supreme Court takes up this issue, counsel should be preserving it in cases where it could make a difference, i.e., cases where the government is seeking extensive enhancements that drive the advisory guidelines upward.
Booker has made the guidelines advisory in a much different sense. Mr. Jamison could have sought relief on that basis, but that would have only put him back before a judge who was determined to give him a high sentence. Instead, Mr. Jamison argued that, since he committed his crime before the Supreme Court’s decision in Booker, he was entitled to be sentenced under mandatory guidelines. He further insisted that, in applying the guidelines, the judge should have granted him the constitutional rights established by the Booker merits opinion. It was, he claimed, a denial of due process and a violation of the ex post facto clause to base a sentence on advisory guidelines.
In a brief opinion, the Court ruled that Mr. Jamison had fair notice that dealing drugs was a crime and fair notice that he could face up to 20 years in prison. Although Booker certainly changed his exposure to punishment, it did not create a crime where none had existed and did not increase the maximum sentence. Receiving a sentence higher than an unadjusted guidelines sentence denied him neither due process nor the protection of the ex post facto clause. The Court joined the Fifth and the Eleventh Circuits in rejecting his argument. The Court did not give serious consideration to the argument that Booker certainly affected this defendant’s maximum sentence in this case. For the weight of drugs that he acknowledged were involved, the maximum sentence was proscribed by the guidelines and could go higher only if a jury found beyond a reasonable doubt that a higher amount was involved. In slighting this argument, the Court ignored the key teaching of Blakely and of Booker.
Jamison’s case raises still another question about the meaning of Booker that only the Supreme Court can definitively resolve. This issue was never presented to the Booker Court, probably since the Booker Court(s) took the case in such an unpredictable direction. Until the Supreme Court takes up this issue, counsel should be preserving it in cases where it could make a difference, i.e., cases where the government is seeking extensive enhancements that drive the advisory guidelines upward.
posted by Bill Theis at 7/20/2005 03:18:00 PM
<< Home