Federal Judiciary

United States v. Ortiz, Docket No. 08-2648-cr (2d Cir. Sept. 1, 2010) (found here) (hat tip to Zachary Margulis-Ohnuma, who handled the appeal on behalf of Ortiz)

Ortiz was sentenced to 120 months imprisonment for firearms and narcotics offenses in what amounted to a non-Guidelines sentence.  On appeal, he contended that his sentence violated the ex post facto clause of the U.S. Constitution because an enhancement, used to calculate his Guidelines sentencing range, was increased after the date of his offense.  Ortiz's sentencing range under the unamended Guidelines would have been 151 to 188 months; under the amended Guidelines the range would have been 168 to 210 months.  The Ortiz case finally provided the Second Circuit with an opportunity to address the applicability of the ex post facto clause to the Guidelines in the post-Booker world.  And here is how it came out.

Specifically, the Second Circuit adopted the "substantial risk" standard enumerated by the D.C. Circuit in United States v. Turner, 548 F.3d 1094 (D.C. Cir. 2008).  In that case, the D.C. Circuit held that an ex post facto violation may occur when a defendant is able to show that use of amended Guidelines "create[s] a substantial risk" of a more severe sentence.  No definitiveness is necessary; rather, a defendant only need show that there is a "substantial risk" of a harsher sentence if the ex post facto clause is not applied when calculating a Guidelines range.  Put differently (as described by the Second Circuit), the standard "recognizes that there may be circumstances where an amended Guidelines range can influence a sentence that violates the Ex Post Facto Clause."

In Ortiz's case, the "substantial risk" standard did not benefit the defendant because the sentence imposed was well below both the amended and unamended Guidelines range.  Thus, the Second Circuit concluded that there was "no risk at all [] that the sentencing judge, having made such a generous deviation from the amended Guidelines range, would have imposed a non-Guidelines sentence of less than 120 months had the bottom of the applicable sentencing range been 151 months, as it was before the Guidelines, rather than 168 months."

As detailed in my July 1, 2009 article in the New York Law Journal entitled "The Ex Post Facto Clause In The Post Booker World" (found here), my view on the issue is different.  Specifically, my article argued that the ex post facto clause continues to apply in the post-Booker world for any number of reasons.  But, even if I'm wrong, it seems that the clause either applies or doesn't apply -- a "yes or no" answer, rather than the "maybe" answer provided by the Second Circuit in Ortiz. 

What are your thoughts?