PROFESSOR PAUL CASSELL AND FREEMAN LEWIS LLP
FILE CERT. PETITION IN U.S. SUPREME COURT
CHALLENGING KEY FEDERAL SENTENCING LAW
AS VIOLATIVE OF THE U.S. CONSTITUTION’S EX POST FACTO CLAUSE

On February 16, 2012, Criminal Law Professor and former Federal Judge Paul G. Cassell and Freeman Lewis LLP filed a petition for writ of certiorari, asking the United States Supreme Court to hear an ex post facto challenge to the so called “one-book rule”, a key provision of federal sentencing law. The petition raises a critical issue affecting many federal criminal defendants throughout the country, has divided the circuit courts, and deserves Supreme Court attention. 

DETERMINING A SENTENCING RANGE UNDER FEDERAL SENTENCING GUIDELINES

In sentencing a defendant, federal judges must consider the Sentencing Guidelines promulgated by the United States Sentencing Commission.  Under the Guidelines, courts must assign a number known as the “offense level” to a defendant after considering listed factors pertaining to the crime of conviction.  For example, if the defendant was convicted of a drug trafficking offense, a primary factor is the amount of narcotics sold, while if convicted of an economic crime, a key factor is the amount of money taken illegally. This offense level is then cross referenced to a “criminal history” category, which is calculated based on the defendant’s criminal past. The offense level and criminal history level together determine a suggested sentencing range (for instance, 20 to 25 months).  Although courts do not have to sentence within the Guidelines range, they must consider it, and most sentences are within the range.   

ANNUAL AMENDMENTS TO THE GUIDELINES

The cert. petition focuses on an issue that has divided courts for almost 20 years and arises from the fact that the Guidelines are frequently amended.  Pursuant to law, every November 1 the United States Sentencing Commission publishes a new

Sentencing Guidelines Manual that contains amendments adopted by the Commission (and not rescinded by Congress) over the previous year.  Since 1985, the Commission has promulgated 760 amendments to the Guidelines.  Many of these amendments -- such as the amendment at issue in our case -- have increased the suggested sentence.  

THE GUIDELINES “ONE-BOOK” RULE CREATES AN EX POST FACTO VIOLATION IN STRADDLE CASES WHERE  AN AMENDMENT INCREASES THE SENTENCING RANGE

Because the Guidelines change every year, federal district courts must determine at sentencing which of the annually revised Sentencing Guidelines manuals or “books” to apply -- The book in effect when the defendant is sentenced?  Or the book in effect when the defendant committed his offenses?  And, of particular focus in our Petition, the district courts must frequently also decide what to do when there is more than one crime of conviction, some of which occurred before and some after an amendment, the so called “straddle cases”. 

The Guidelines themselves direct courts in straddle cases to apply the one book only, the last book, to all crimes, even to those committed before the Guidelines were amended, and to do this even where the amendment increases the penalty.  

We believe that this violates the Ex Post Facto Clause of the U.S. Constitution, which prohibits increasing the penalty for a crime after the crime has been committed. 

CONFLICT AMONG THE CIRCUIT COURTS

To date, many courts throughout the country have addressed this issue and have split into several different camps.  Some agree with us that the application of the “one-book rule” in straddle cases where an amendment increases penalties is a violation of the Constitution.  On the other hand, the Second Circuit Court of Appeals, which sits in New York, has ruled that it does not.  And yet other courts have tried to split the baby, ruling that whether there is a violation depends on things such as how connected, similar, related or continuous the pre- and post-amendment crimes are.

The disarray among the courts means that a criminal defendant’s sentence in straddle cases will depend on the Circuit in which he is convicted.  This undermines the primary goal of the Guidelines, which is to bring uniformity to federal sentencing.

Our Petition argues that the Supreme Court should take up the case in order to resolve this Circuit split and bring uniformity to federal sentencing.

Link to Petition for Write of Certiorari in Gabayzadeh v. United States

 

About Paul G. Cassell
Mr. Cassell is the Ronald N. Boyce Presidential Professor of Criminal Law at the S.J. Quinney College of Law at the University of Utah.  From 2002 to 2007 he was a Judge on the United States District Court, District of Utah.

About Freeman Lewis LLP
Freeman Lewis LLP is a boutique business dispute resolution firm, whose founders Jennifer Freeman and Robert Y. Lewis together have more than 50 years of experience assisting clients resolve business disputes through litigation, arbitration, mediation and negotiation. Their firm focuses on commercial litigation, employment law, securities arbitration, white-collar criminal, and ERISA. For more information, visit http://www.freemanlewis.com.