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Friday, August 11, 2006

Ind. Decisions - 7th Circuit decides one from Indiana today

In USA v. Demaree, Rebecca S. (SD Ind., David F. Hamilton, Judge), an 8-page opinion, Judge Posner begins:

POSNER, Circuit Judge. The only question presented by this criminal appeal is whether, the federal sentencing guidelines having been made advisory by the Supreme Court in United States v. Booker, 543 U.S. 220 (2005), a change in the guidelines that expands the guidelines range for a crime is an ex post facto law and so cannot be applied to a defendant who committed his crime before the change.

The defendant in this case had pleaded guilty to wire fraud and tax offenses growing out of her embezzlement of almost $300,000. Under the 2000 version of the guidelines, in force when she committed these crimes, the sentencing range was 18 to 24 months. But under the 2004 version, which among other changes relevant to her case reflects an increase in the punishment range for wire fraud to bring it into line with punishments for similar theft and fraud offenses, U.S.S.G., App. C, amendment 617 (Supp. 2002), the sentencing range is 27 to 33 months. The judge applied the 2004 guidelines, as he was required to do by the Sentencing Reform Act, 18 U.S.C. ยง 3553(a)(4)(A)(ii), and sentenced her to 30 months. But he added that if the 2000 guidelines were applicable to her case instead, he would have sentenced her to only 27 months (above the guidelines range, but not quite so far above as the 30-month sentence that he actually gave her). Demaree has appealed, and the government has confessed error, but we are not required to accept its confession. E.g., United States v. Walker, 447 F.3d 999, 1005-07 and n. 7 (7th Cir. 2006).

[More] Doug Berman of Sentencing Law Blog has this to say, before quoting the first paragraph of Posner's opinion:
In what could be an extraordinarily important ruling, the Seventh Circuit today in US v. Demaree, No. 05-4213 (7th Cir. Aug. 11, 2006) (available here) essentially holds that pre-Booker ex post facto limits on the application of the most recent guidelines are no longer applicable now that the guidelines are advisory. This issue, which I raised in this post a few months ago, has not been thoroughly considered by any other circuit. But the Demaree ruling seems to cut against what nearly all district and circuit courts have been doing after Booker.

All 8 pages of Demaree are packed with highlights for sentencing geeks, and Judge Posner's opinion also has flourishes that will intrigue constitutional scholars.

[More, from 8/12/06] Berman has more today on yesterday's Demaree opinion.

Posted by Marcia Oddi on August 11, 2006 02:30 PM
Posted to Ind. (7th Cir.) Decisions