The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge
MEMORANDUM OPINION AND ORDER OF COURT
On August 9, 2011, Defendant, David Curran, pled guilty to Counts 1, 2, 4, and 6 of a Superseding Indictment.*fn1 Sentencing is scheduled for December 9, 2011. On November 1, 2011, the Probation Office prepared a Presentence Investigation Report in which it used the 2008 Guidelines Manual, the manual in effect on the date of Defendant‟s offenses, to calculate the Defendant‟s advisory guideline sentencing range. The 2008 edition was used instead of the 2011 edition to avoid an ex post facto violation in light of the presence of an enhancement in the 2011 edition that was not present in the 2008 edition.
The government objects to the use of the 2008 Guidelines Manual and argues that the 2011 Guidelines should be applied. The government argues that in the post-Booker era, "the application of a past version of the sentencing guidelines as a result of ex post facto concerns is now an anachronism."
After deliberate consideration of the objection of the government, the response of the Probation Office, and applicable case law, the Court finds that the reasoning of the opinions issued by the United States Court of Appeals for the Second, Fourth, Eleventh and District of Columbia circuits are persuasive and, thus, finds that application of the 2011 guidelines would violate the Ex Post Facto Clause of the Constitution. Accordingly, the Court will calculate the Defendant‟s advisory guideline range according to the 2008 Guidelines Manual which were in effect on the date of his offenses of conviction.
The Ex Post Facto Clause, U.S. Const., art. I, § 9, cl. 3, states that "No . . . ex post facto Law shall be passed." See also art. I., § 10, cl.1. This provision in the Constitution serves two purposes: (1) "to assure that federal and state legislatures were restrained from enacting arbitrary or vindictive legislation," and (2) to "give fair warning" of the effect of legislative enactments‟ effect and "permit individuals to rely on their meaning until explicitly changed." Miller v. Florida, 482 U.S. 423, 429-30 (1987). The Ex Post Facto Clause prohibits the retroactive application of "[e]very law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed." Miller, 482 U.S. at 429. See also Garner v. Jones, 529 U.S. 244, 249 (2000) ("One function of the Ex Post Facto Clause is to bar enactments which, by retroactive operation, increase the punishment for a crime after its commission.")
In Miller v. Florida, the United States Supreme Court held that it was a violation of the Ex Post Facto Clause for the State of Florida to apply its updated sentencing guidelines where the new guidelines range would be lengthier than the guidelines in effect at the time of the offense. The Supreme Court reasoned that the law was ex post facto because it was retrospective and it disadvantaged the offender affected by it. Miller, 482 U.S. at 430. Every court of appeals, including the United States Court of Appeals for the Third Circuit, thereafter concluded that the federal sentencing guidelines were held to the same standard. See e.g., United States v. Koop, 951 F.2d 521, 526 (3d Cir. 1991). Section 1.B1.11 of the Guidelines states that "[t]he Court shall use the Guidelines Manual in effect on the date that the defendant is sentenced. If the court determines that use of the Guidelines Manual in effect on that date that the defendant is sentenced would violate the ex post facto clause of the United States Constitution, the court shall use the Guidelines Manual in effect on the date that the offense of conviction was committed." USSG 1B1.11(a) and (b)(1).
However, the continued existence of the ex post facto concern has been called into doubt since the remedial opinion in United States v. Booker, 543 U.S. 220, 244-668 (2005), made the federal sentencing guidelines advisory. In fact, the issue of whether application of a guideline amended after the date of an offense violates the Ex Post Facto Clause under the advisory Guidelines regime, as it did when the Sentencing Guidelines were mandatory, has divided the courts of appeals. In United States v. Demaree, 459 F.3d 791 (7th Cir. 2006), the Seventh Circuit ruled that the Ex Post Facto Clause was not violated because the application guideline, used to make the initial Guidelines calculation, only "nudges" the sentencing judge toward the sentencing range, but the judge‟s freedom to impose a reasonable sentence outside the range is unfettered." Id. at 795. See also United States v. Robertson, -- F.3d ---, 2011 WL 5555865 (7th Cir., Nov. 16, 2011) (reaffirming the analysis set forth in Demaree); United States v. Barton, 455 F.3d 649, 655 n.4 (6th Cir. 2006) ("When the Guidelines were mandatory, defendants faced the very real prospect of enhanced sentences caused by changes in the Guidelines or changes in the interpretation of Guidelines that occurred after they had committed their crimes. Now that the Guidelines are advisory, the Guidelines calculation provides no such guarantee of an increased sentence, which means that the Guidelines are no longer akin to statutes in their authoritativeness. As such, the Ex Post Facto Clause itself is not implicated.")
To the contrary, the Second, Fourth, Eleventh, and District of Columbia Circuits have each recently held that ex post facto concerns continue to exist post-Booker. United States v. Ortiz, 621 F.3d 82 (2nd Cir. 2010); United States v. Lewis, 606 F.3d 193 (4th Cir. 2010); United States v. Wetherald, 636 F.3d 1315 (11th Cir. 2011); and United States v. Turner, 548 F.3d 1094 (D.C. Circ. 2008).
Several other circuits have continued to apply the Ex Post Facto Clause to the advisory guidelines without directly addressing the impact of Booker. See United States v. Gilman. 478 F.3d 440, 449 (1st Cir. 2007) ("Although we note that the Court of Appeals for the Seventh Circuit has concluded that Booker‟s ruling that the guidelines are advisory rather than mandatory carries with it the elimination of ex post facto concerns, the issue is doubtful in this circuit."); United States v. Wood, 486 F.3d 781, 790-91 (3d Cir. 2007) (finding plain error where government conceded guidelines in effect on date of offense should have been applied); United States v. Duane, 533 F.3d 441, 446-47 (6th Cir. 2008) ("assum[ing] arguendo that a retroactive change to the Guidelines could implicate the Ex Post Facto Clause"); United States v. Carter, 490 F.3d 641, 643 (8th Cir. 2007) addressing the defendant‟s ex post facto claim, but noting the decision in Demaree); United States v. Rising Sun, 522 F.3d 989, 992 n.1 (9th Cir. 2008) (noting that district court was correct to apply guidelines in effect on date of offense to avoid ex post facto violation.")
The Court of Appeals for the Third Circuit has not directly addressed the impact of Booker on this issue. However, somewhat telling, in a very recent opinion, our appellate court assumed that the Ex Post Facto Clause still applies post-Booker. Citing § 1B1.11(b)(1) of the Guidelines, the appellate court stated that "if the court determines that use of the Guidelines Manual in effect on the sentencing date would violate the ex post facto clause, "the court shall use the Guidelines Manual in effect on the date that the offense of conviction was committed." United States v. Siddons, --- F.3d. ---, 2011 WL 4582502 (3d Cir. Oct. 5, 2011);*fn2 see also United States v. Larkin, 629 F.3d 177, 193 (3d Cir. 2010).
There are two critical elements of a viable ex post facto claim. First, the law at issue "must be retrospective, that is, it must apply to events occurring before its enactment." Miller, 482 U.S. at 430. Second, the law at issue must "increase the penalty by which a crime is punishable." California Dep't of Corr. v. Morales, 514 U.S. 499, 506 n. 3 (1995). The United States Supreme Court has held that "no ex post facto violation occurs if a change does not alter " "substantial personal rights,‟ but merely changes "modes of procedure which do not affect matters of substance‟." Miller, 482 U.S. at 430 (quoting Dobbert v. Florida, 432 U.S. 282, 293 (1977)).
A law is retrospective if it "appl[ies] to events occurring before its enactment." Miller, 482 U.S. at 430. In this case, as in Miller, "[a]pplication of the revised guidelines law in [the defendant‟s] case clearly satisfies this standard." Id.
The second prong of the ex post facto test has evolved over time. When Miller was initially decided, the inquiry was whether the law "disadvantage[d] the offender affected by it." Miller, 482 U.S. at 430. After Collins v. Youngblood, 497 U.S. 37, 41-43 (1990), "the focus on the ex post facto inquiry is not on whether a legislative change produces some ambiguous sort of "disadvantage,‟ . . . but on whether any such change alters the definition of criminal conduct or increases the penalty by which a crime is punishable." Morales, 514 U.S. at 506 n. 3. A law is therefore ex post facto if it "creates a significant risk" of prolonging ...