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.