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DC CIrcuit notes, then avoids, circuit split over ex post facto Booker issue

By Douglas A. Berman

The DC Circuit yesterday in US v. Andrews, No. 07-3024 (DC Cir. July 15, 2008) (available here), had this notable discussion, and dodge, of ex post facto issues after Booker:[I]n its 2005 opinion in United States v. Booker, the Supreme Court held that the Sentencing Guidelines must now be regarded as advisory rather than mandatory. 543 U.S. at 245. This circuit has not yet determined whether, after Booker, application of a later (than the date-of-offense) Guidelines Manual that yields a higher sentence continues to raise an ex post facto problem. Nor has the Supreme Court. The Seventh Circuit has concluded that use of a later Manual no longer presents such a problem, holding that ?the ex post facto clause should apply only to laws and regulations that bind rather than advise...continue to full post

Full post as published by Sentencing Law and Policy on July 16, 2008 (boomark / email).