For the past three years there has been a growing circuit split on whether a defendant’s sentence may be increased by using a Federal Sentencing Guidelines manual that was amended after the offense took place and whether such an increase would violate the Ex Post Facto Clause. Chicago-based attorney Marc Martin filed a petition on Tuesday in United States v. Custable, asking the Court to remedy the circuit split that has become “more pronounced.”
In April of 2005, Frank Custable was indicted on a series of wire and mail fraud offenses, and obstruction of justice. Custable pled guilty, admitting to fraud lasting between April 2001 and June 2002, and to the communication of false information (obstruction) in July of 2002. Custable argued that the 2001 Federal Sentencing Guidelines manual governed sentencing, whereas the probation office calculated the Guideline range using the 2008 manual. Under the 2001 version, Custable faced an advisory Guideline range of 188 to 235 months imprisonment. But under the 2008 version, Custable faced a range of 262 to 327 months imprisonment.
Custable contended that the application of the 2008 Guidelines manual violated the Ex Post Facto Clause. Based on prevailing Seventh Circuit precedent, the district court used the 2008 manual and imposed a sentence of 262 months—the bottom of the advisory Guideline range.
On appeal Custable asked the Seventh Circuit to reverse their decision in United States v. Demaree, 459 F.3d 791 (7th Cir. 2006), given the growing number of circuits that disagree with them. The Seventh Circuit had none of it, holding that the retroactive—as opposed to prospective only—use of a Guidelines manual did not implicate Ex Post Facto concerns. United States v. Favara, 615 F.3d 824, 829 (7th Cir. 2010) (“We find no reason to abandon that conclusion today.”).
The petition argues that the Court must resolve an intractable split on a recurring federal issue that is “obviously important.” The petition further notes that the “more stringent Guidelines had the practical effect of increasing petitioner’s punishment,” thus, petitioner’s Ex Post Facto claim is “neither speculative nor attenuated.”
While it remains to be seen whether the Court will accept this case, there is little doubt that when confronted with disparate sentencing treatment based solely on geographical region, the Court will have to, at some point, step in to resolve this issue.