Federal Judiciary

United States v. Gilmore, Docket No. 07-0349-cr (2d Cir. March 17, 2010) (found here)

Well, Gilmore did NOT answer the question that "remains open" in the Second Circuit with regard to the ex post facto clause -- to wit, whether transformation of the Sentencing Guidelines from a mandatory regime to one that is purely advisory affects the ex post facto consequences of relying on a later-enacted version of the Guidelines. 

But the Second Circuit came a little closer to answering that question when it found that the district court in Gilmore did not err and did not violate the ex post facto clause when it calculated and considered a sentence under the version of the Guidelines in effect at the time of the offense, but referred to a subsequent (and harsher) version of the Guidelines as indicative of the seriousness of the offense and the reasonableness of a non-Guidelines sentence.

One additional note: As practitioners in the Second Circuit know, the Government takes the position that the ex post facto clause is no longer an issue with regard to the Guidelines because they are now advisory rather than mandatory.  In Gilmore, however, the Government initially joined in Gilmore's request for resentencing based on an ex post facto violation.  But it subsequently submitted a letter advising the Second Circuit that it had changed its opinion, and that it believed that the ex post facto clause does not apply to the Guidelines.

For more on the application of the ex post facto clause to the Guidelines, check out my July 1, 2009 article in the New York Law Journal entitled "The Ex Post Facto Clause in the Post-Booker World," which can be accessed here.