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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)

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.

While on supervised release from an earlier federal sentence, Dwayne Head was convicted in the Superior Court and imprisoned on local law felony threat charges. Following a hearing, the federal court revoked his supervised release and imposed a thirty-month consecutive sentence. His counsel did not timely object to the trial judge’s statement that the then-applicable Guidelines required that the sentence be consecutive. (slip op. at 2-3).

Crucial to the Circuit decision is the doctrine that “[a] sentence imposed upon revocation of supervised release is not punishment for the violation of the supervised-release condition, but “part of the penalty for the initial offense.” (slip op. at 3) (citing Johnson v. United States, 529 U.S. 694, 700 (2000). Thus understood, the revocation should have been considered part of the penalty for the earlier offense, and not some new crime. (slip op. at 6). In 1988, when Head’s original crime was committed, the Sentencing Guidelines were silent as to whether a revocation term of imprisonment was to be served consecutive to, or concurrently with, any other sentence. (slip op. at 6 (citing UNITED STATES SENTENCING COMMISSION, GUIDELINES MANUAL ch.7 (October 1987, effective June 15, 1988)). It was not until 1990, long after Head’s original offense, that the Guidelines changed, such that a term of imprisonment imposed on revocation of supervised release must run consecutively to any other prison term. USSG § 7B1.3(f) (1990). Thus, “[u]nconstrained by section 7B1.3(f), the district court had discretion under the 1988 Guidelines and the general guidance offered by 18 U.S.C. §§ 3553(a), 3583(e), and 3584 to impose either a consecutive or concurrent sentence. “ (slip op. at 6-7) (citing, inter alia, United States v. Ayers, 795 F.3d 168, 172 (D.C. Cir. 2015)). “Reliance on section 7B1.3(f) here created at least a ‘substantial risk’ that Head’s sentence was more severe than it would have been had the court sentenced him under the Guidelines in effect at the time of his offense.” (slip op. at 7) (citations omitted).

Based on a “limited record,” in which the trial judge’s comments could have been construed as indicating a belief that a consecutive sentence was mandatory,  the balance was tipped in appellant’s favor by the absence of any articulated suggestion by the sentencing judge that he possessed discretion to impose a concurrent sentence. (slip op. at 7-8). The panel majority was unpersuaded by the Government’s contention that the court had made a discretionary decision and that the same result would have been reached under the older Guidelines. The former argument was rejected because the court had stated the guidelines “‘require’ consecutive sentences.” (slip op. at 9. And the latter foundered because the record did not confirm that the district judge would have imposed the same consecutive sentence under a discretionary regime. (Id. at 9-10).

 Summarizing, the panel majority found the so-called Olano factors (United States v. Olano, 507 U.S. 725, 732-34 (1993)) satisfied: the Ex Post Facto violation was plain, affected Heard’s substantial rights, and impaired the sentencing proceeding’s integrity. (slip op. at 10-13). Of importance to practitioners, the majority aligned this Circuit with seven other Courts of Appeals in holding that the use of the wrong Guidelines, resulting in the risk of an increased sentence, “‘should be presumed to affect the defendant’s substantial rights.’” (Slip op. at 11) (citing, inter alia, United States v. Syme, 276 F.3d 131, 158 (3rd Cir. 2002), and United States v. Davis, 397 F.3d 340, 349-50 (6th Cir. 2005) (collecting cases)).

Dissenting, Senior Circuit Judge Sentelle described the majority opinion as having undertaken “a thorough scholarly plunge into the history of the applicable guidelines.” Judge Sentelle than acknowledged the earlier version had given the trial court discretion to sentence concurrently rather than consecutively that it was error to see it any other way. (slip op.) (Sentelle, J., dissenting). However, the dissent concluded that the sentencing record made plain that the district judge had recognized his discretion to impose a concurrent sentence but chose not to do so because of the defendant’s past record. Finally the dissent observed that “the entry of a sentence that by the majority’s acknowledgment could be entered based on the judge’s discretion even under the old guidelines, and would be required to be entered under the current guidelines, hardly seems to me to seriously affect the “fairness, integrity or public reputation of the judicial proceedings.”” (id.). That last statement, in your correspondent’s view, disserves the social interests in ensuring that defendants, even those with poor records (and Dwayne Head surely appears to be anything but the proverbial choirboy), not be over-sentenced.

Robert Becker has earned a solid and well-reasoned victory for his client.

–Steve Leckar, of counsel to Kalbian Hagerty LLP, enjoys following and occasionally arguing in the D.C. Circuit.