Ex Post Facto Still Applies to Guidelines

US v. Lewis: Lewis was sitting in the driver's seat of a car parked in Richmond when three police officers approached. One of them saw an open beer bottle in the car. When Lewis rolled down the car window, officers smelled marijuana. Lewis was asked to exit the car but refused and had to be "removed . . . from the vehicle." After Lewis was in handcuffs, officers saw a pistol on the driver's side floorboard of the car. A computer check showed that Lewis was a convicted felon and he was subsequently charged with being a felon in possession of a firearm.

After an unsuccessful motion to suppress the firearm, Lewis was convicted following a jury trial. At sentencing the main issue was which version of the Guidelines applied - those in effect at the time of sentencing (2008 version) or those in effect at the time of the offense (2005 version). The older Guidelines produced a sentencing range about half that of the 2008 version. Lewis objected to the use of the 2008 Guidelines on ex post facto grounds and the district court agreed, eventually imposing a 27-month sentence.

The Government appealed the district court's Guideline decision and Lewis cross-appealed the denial of his motion to suppress. The Fourth Circuit rejected both arguments. As to the motion to suppress, the court held that the interaction with Lewis began as a consensual encounter and probable cause for a search of the car developed once the officers saw the beer bottle and smelled the marijuana.

As to the Guideline issue, the court noted a split between the Seventh and DC Circuits as to whether post-Booker advisory Guidelines could violate the ex post facto clause at all. The court sided with the DC Circuit and held that they could, given the that the Guidelines "represent the crucial 'starting point,' as well as the 'initial benchmark'" for post-Booker sentencing proceedings. The key was not whether use of the 2008 Guidelines de jure required a higher sentence, but whether it had the practical effect of creating "a significant risk of increased punishment for Lewis."

SDWV Chief Judge Goodwin, sitting by designation, dissented from the court on the Guideline issue, arguing that "the majority ignores the reality that the Guidelines lack legal force" and that it "creates a constitutional contradiction by ignoring the Sixth Amendment implications of treating the Guidelines as a anything more than advisory."

Congrats to FPD office in EDVA on the win!