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DC Circuit produces crisp split on ex post issues after Booker (finally!!)

By Douglas A. Berman

In my view, one of the most interesting and amazingly underexamined post-Booker issue concerns whether or not the conversion of the guidelines to advisory status changed the settled pre-Booker determination that ex post facto doctrine precluded the application of new harsher guidelines to old crimes.  Before today, the only circuit court to seriously engage this (arguably very important) issue was the Seventh Circuit, which held a couple of years ago held in US v. Demaree, 459 F.3d 791 (7th Cir. 2006), that Booker alters the ex post facto analysis. Though not subject to lots of circuit analysis, Demaree was largely an outlier because most lower courts and most litigants and most probation offices proceeded after Booker as if the old ex postrules still applied...continue to full post

Full post as published by Sentencing Law and Policy on December 05, 2008 (boomark / email).