Panel Breaks With Prior Panel Precedent; Holds Ex Post Facto Clause Does Not Apply to Guidelines Increases Post-Booker

United States v. Castillo-Estevez, No. 09-40096 (5th Cir. Feb. 9, 2010; rev'd Mar. 10, 2010) (Jones, Smith, Elrod)

See update below.

Here we have an instance of dueling panels. Castillo-Estevez holds that any error in the district court's application of the Sentencing Guidelines was not plain, despite the fact that there is controlling circuit precedent on the precise question at issue, and under that precedent the district court plainly erred.

The scenario: Castillo pleaded guilty to illegal reentry. He had a prior New York conviction for criminal sale of a controlled substance; that offense can be committed simply by an offer to sell; it does not require an actual sale. Under the 2007 Sentencing Guidelines in effect at the time Castillo committed the illegal reentry, an offer to sell a controlled substance was not a "drug trafficking offense" for purposes of the 12- or 16-level enhancements under §2L1.2. (In fact, it probably wasn't even an "aggravated felony" for purposes of the 8-level enhancement.) But under the 2008 Guidelines in effect at the time of Castillo's sentencing, an offer to sell was a §2L1.2 DTO (due to an expanded DTO definition). The district court applied the 2008 Guidelines, resulting in a higher range than would have applied under the 2007 Guidelines in effect at the time of Castillo's offense.

On appeal, Castillo naturally argued that this was an ex post facto violation, because he received a more severe sentence due to a guideline change that took effect after he had completed his offense. Unfortunately, Castillo raised this argument for the first time on appeal, resulting in plain error review.

Here's what the court said:

Castillo’s argument overlooks the Supreme Court’s subsequent decision in United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), which rendered the sentencing guidelines merely advisory. In United States v. Rodarte-Vasquez, 488 F.3d 316 (5th Cir. 2007) (Jones, C.J., concurring), it was observed that the now-advisory guidelines should not raise ex post facto concerns because “the sentence imposed by the court need not be harsher under later guidelines than it would have been under the guidelines in effect when the offense was committed.” [Two circuits have agreed with that observation, two others have disagreed.]

We need not determine here whether ex post facto claims arising from the application of evolving sentencing guidelines are viable after Booker. Even if the district court’s application of the 2008 guidelines violated the ex post facto clause, the error would certainly not be “plain” in light of such post-Booker cases as Rodarte-Vasquez, Demaree, and Barton. To be “plain,” legal error must be “clear or obvious, rather than subject to reasonable dispute.” Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). See also United States v. Peltier, 505 F.3d 389, 391 n.3 (5th Cir. 2007) (“Plain error must be ‘error so obvious that our failure to notice it would seriously affect the fairness, integrity, or public reputation of [the] judicial proceedings and result in a miscarriage of justice.’”). Because the caselaw reveals a “reasonable dispute” regarding the ex post facto implications of retroactive application of the advisory guidelines, the district court’s error, if any, was not plain.

But the Fifth Circuit has already determined that ex post facto claims arising from the application of evolving sentencing guidelines are viable after Booker. In United States v. Austin, 479 F.3d 363—a pre-Rodarte-Vasquez decision reviewing a sentence imposed post-Booker—the court began its analysis by noting that,

Post-Booker, we continue to review the district court's interpretation of the Sentencing Guidelines de novo and its fact findings for clear error, although the ultimate sentence is reviewed for unreasonableness. When calculating a Guidelines sentencing range, a district court applies the Guidelines in effect at sentencing, unless the Guidelines in effect when the offense occurred would yield a lesser penalty. In such a case, to avoid ex post facto concerns, the court uses the Guidelines yielding the lesser penalty.

Later, applying that rule, Austin stated that "the offense level under the 2004 Guidelines is higher than under the 1998 Guidelines, and the 1998 Guidelines apply." The court went on to hold that the district court had incorrectly calculated the range under the older Guidelines, and even vacated the sentence on plain error review.

Thus, in light of Austin, the district court's application of more severe post-offense 2008 Guidelines in Castillo's case was not only error, but clear and obvious error. (It might very well meet the other requirements for reversal under plain error review, too.) And that should hold true even though there's a circuit split on the ex post facto question.

The opinion in Castillo-Estevez does not discuss or attempt to distinguish Austin, so there is no way to know for sure why the court did not find it controlling. (It also is not clear whether Castillo brought up Austin. The opinion says only that he relied on United States v. Kimler, 167 F.3d 889 (5th Cir. 1999), a pre-Booker decision.) In any event, because one panel may not overrule another (absent something like a statutory change or intervening Supreme Court case law), Austin should control over Castillo-Estevez.

3/10/2010 UPDATE: In an apparent response to a petition for rehearing en banc, the panel has issued a revised opinion that includes a footnote addressing Austin:

Our post-Booker decisions in United States v. Reasor, 418 F.3d 466 (5th Cir. 2005), and United States v. Austin, 479 F.3d 363 (5th Cir. 2007), do not alter our conclusion that the district court committed no plain error. Reasor is distinguishable. See Rodarte-Vasquez, 488 F.3d at 325 n.2 (Jones, C.J., concurring). Moreover, the court’s acknowledgment in Austin that retroactive guidelines application might pose ex post facto problems was dicta; ex post facto claims were not at issue on appeal because the lower court had applied the guidelines version yielding a lesser penalty. 479 F.3d at 366–67.

To be fair, Austin is a difficult read (unless you delight in reading discussions of loss-amount calculations in Medicare fraud cases). But it's hard to see how Austin's ex post facto analysis could be dicta. As near as I can tell, Austin argued that the district court should have applied the 2004 Guidelines in effect at the time of sentencing, rather than the 1998 Guidelines in effect at the time of his offense, because the loss calculation would have been lower under the later version. He also argued that the district court erred in not crediting certain funds against the loss amount (presumably under the 1998 Guidelines, since it appears that he arrived at a loss of $0 under his interpretation of the 2004 Guidelines even without this credit). The court of appeals:

1. acknowledged that when the Guidelines range is higher under the version in effect at the time of sentencing than under the version in effect at the time of the offense, the court must apply the earlier version "to avoid ex post facto concerns,"
2. rejected Austin's proposed interpretation of the applicable 2004 provisions (which would have resulted in a loss amount of $0),
3. applied the ex-post-facto clause to conclude that because "the offense level under the 2004 Guidelines is higher than under the 1998 Guidelines, . . . the 1998 Guidelines apply[,]" and
4. ultimately held that the district court incorrectly calculated the loss under the 1998 Guidelines.

Because the court necessarily had to confront the ex post facto issue to resolve the case, Austin's discussion of and application of the rule was not dicta and Austin should be controlling on the question unless and until the en banc Fifth Circuit or Supreme Court conclude otherwise. (Which may very well happen at some point, as there is a circuit split on the question.)