USA v. Demaree, 05-4213.   

The opinion of the court was delivered by: Posner, Circuit Judge.

The only question presented by this criminal appeal is whether 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.

Under the 2000 version of the guidelines, in force when Demaree committed these crimes, the sentencing range was 18 to 24 months. But under the 2004 version, 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. § 3553(a)(4)(A)(ii), and sentenced her to 30 months.

The 7th Circuit then states, the district judge is not required-or indeed permitted, to "presume" that a sentence within the guidelines range is the correct sentence.  As such, if the judge wants to depart form the guidelines, all the judge has to do is give a reason why the guidelines not correct. In short, all the judge has to do is consider the guidelines and make sure that the sentence he gives is within the statutory range and consistent with the sentencing factors listed in 18 U.S.C. § 3553(a).

The 7th Circut concludes that the ex post facto clause should apply only to laws and regulations that bind rather than advise.  As such, a district judge can consider a change of guidelines when imposing a sentence and not run against ex post facto considerations.

For more about attorney Michael J. Petro, visit www.mjpetro.com .

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