Ex Post Facto Clause and the Sentencing Guidelines

United States v. Rebecca S. Demaree, No. 05-4213 (August 11, 2006): Ms. Demaree was sentenced to 30 months in prison. At the time of her offense, the Guidelines for her offense gave a range of 18 to 24 months. The Guidelines in effect at the time of her sentencing suggested a range of 27 to 33 months. The district judge picked the later, harsher Guidelines, but stated that if the older Guidelines were to apply, he would have sentenced her to 27 months in prison.

The government agreed with the defense that the judge’s choice of the later guidelines violated the ex post fact clause of the Constitution. But the Court refused to accept the government’s concession. Since the Guidelines are now advisory, use of a later, harsher version does not violate the ex post facto clause.

The Court stressed that under the new regime the district court is neither required nor permitted to presume that a sentence within the guidelines is the correct sentence. A sentence, whether inside or outside the range, is subject to "only light appellate review."

A number of cases from other Circuits have assumed the opposite answer to this issue. It remains to be seen how this issue will be resolved by the Supreme Court.

Right to Plead Guilty

United States v. Rafael Rea-Beltran, No. 04-2305 (August 10, 2006): Mr. Beltran entered a plea to illegal reentry by an alien, but the district judge set aside his plea. Mr. Beltran stated to the court that he believed he had permission to reenter the country. He went to trial on this charge, as well as an additional charge, which would have been dismissed under the terms of the plea agreement. On appeal, he challenged the district judge’s refusal to accept his guilty plea.

The Court acknowledged that there is no constitutional right to plead guilty. But under Federal Rule of Criminal Procedure 11, the district court cannot act arbitrarily in rejecting a guilty plea. To comply with this duty, the court must state a "sound reason" for rejecting a plea. In this case, the district court did not have a sound reason. It rejected the plea because of the mistaken notion that Mr. Beltran would have a defense if he believed that he had the Attorney General’s permission to reenter the country. In fact, said the Seventh Circuit, the crime is committed if there has been no permission to reenter. A mistaken belief that permission has been given is not a defense. Hence, the district court had no sound reason for rejecting the plea.

New Directions for FRE 404(b)?

United States v. Keefer Jones, No. 04-2447 (August 1, 2006): Mr. Jones was convicted of possession with intent to distribute crack. Invoking Federal Rule of Evidence 404(b), the government introduced a prior conviction for drug distribution. Its theory was that this conviction went to the issue of intent.

On appeal the Court upheld the conviction, but its remarks suggest that district courts need to be more careful and deliberate in their consideration of such evidence.

"Although we must give great deference to the district court’s decision to admit the evidence, we pause to point out that our examination of the record in this case reveals that the district court’s consideration of the matter does not appear to reflect the sort of critical evaluation of the issue that we believe ought to be undertaken in determining whether, in an exercise of discretion, such evidence ought to be admitted on the issue of intent. As far as we can ascertain from the cold record, in deciding the matter, the court recited the governing principles from our case law, but otherwise revealed little in the way of critical analysis as to how those principles ought to apply to the facts of this particular case. This lapse well may be attributable, in part at least, to our own treatment of such matters on occasion; our cases have not always reflected a critical application of the principles reflected in the case law to the facts of the individual case."

The Court also noted that defense counsel did little to focus the district court’s attention on the specific facts of this case.

Although he joined in the Court’s opinion, Judge Easterbrook’s concurring opinion suggested that district judges must give more thought to the admission of Rule 404(b) evidence. He emphasized that the Rule decrees that such evidence can be admitted, not that it is automatically admissible. It must be relevant as measured by FRE 402, and its probative value must outweigh its potential for prejudice, as mandated by FRE 403. He expressed grave doubt that a conviction for another drug offense would say much about the intent of the defendant in the current offense. Nor does a limiting instruction do much to cure the problem. He concluded with the observation that prior convictions should generally be excluded unless the defense suggests that the defendant did not have the requisite intent or knowledge.

Regrettably, both opinions concluded that the conviction, which was six years old, was not remote in time. One wonders if any amount of time will make a conviction too remote for Rule 404(b) purposes.