Ex Post Facto – counsel’s failure to seek a sentence by application of the Guidelines in effect at the time of the offense was plain error: United States v. Head, _ F.3d _ (D.C. Circuit, No. 14-3055, March 25, 2016)
A 2-1 panel of the D.C. Circuit found plain error for trial counsel’s failure to ask the district court to sentence the offender in accordance with the Guidelines in effect at the time of the offense. Because those Guidelines would have been more favorable to the defense, an Ex Post Facto clause violation occurred.
Head is a split opinion that is reminiscent of United States v. Abney, _ F.3d _ (D.C. Circuit, No. 14-3074, February 5, 2016). In Head, another interesting alignment (Circuit Judge Pillard and Senior Circuit Judge Silberman comprising the majority with Senior Circuit Judge Sentelle dissenting) found that defense counsel should have urged the district judge not to rely on post-offense Guidelines, and vacated and remanded the sentence for re-sentencing under the proper Guidelines.