United States v. Kiekow; 2017 WL 4112406 (5th Cir. 2017) – Applying §2D1.1(b)(12) violated the Ex Post Facto Clause
The defendant and several co-defendants were convicted by a jury of conspiracy to distribute or possess with intent to distribute cocaine. Evidence showed that the conspiracy ended in 2009. The defendant’s PSR recommended a two-level increase pursuant to §2D1.1(b)(12) for maintaining a premises for the purpose of manufacturing or distributing a controlled substance. This resulted in a sentencing range of 121 to 151 months and the district court imposed a sentence at the bottom of that range.
On appeal, the defendant argued that the enhancement did not exist during the period of the conspiracy; therefore, applying it violated the Ex Post Facto Clause. Reviewing for plain error, the Fifth Circuit agreed, citing Peugh v. United States, — U.S. —-, 133 S. Ct. 2072, 2084 (2013), where the Court established that “where the wrong Guidelines are consulted and those Guidelines expose a defendant to greater punishment, the district court violates the Ex Post Facto Clause.” See also, United States v. Armstead, 114 F.3d 504, 510 (5th Cir. 1997) (“A sentence that is increased pursuant to an amendment to the guidelines effective after the offense was committed violates the ex post facto clause.”).
The government conceded that the district court “plainly erred by applying the two-level increase.” Without the enhancement, the defendant’s sentencing range was 97 to 121 months. While the exposure to an increased was small, it was an increase nonetheless. Here, “there was plain error, it is clear, and it affected [the defendant’s] substantial rights by imposing a significant risk of a higher sentence.” Finally, the error seriously affected “the fairness, integrity, or public reputation of judicial proceedings insomuch that this court should exercise its discretion to correct the error.”
What is ex post facto?
An ex post facto law is a law that retroactively changes the legal consequences (or status) of actions that were committed or relationships that existed, before the enactment of the law. In criminal law, it may criminalize actions that were legal when committed; it may aggravate a crime by bringing it into a more severe category than it was in when it was committed; it may change the punishment prescribed for a crime, as by adding new penalties or extending sentences; or it may alter the rules of evidence in order to make conviction for a crime likelier than it would have been when the deed was committed.
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