stating the general rule applicable in the federal system that the sentencing court must apply the sentencing guidelines manual in effect at the time of sentencing, but noting that where such retroactive application would result in harsher penalties, the court must apply the manual in effect at the time of the offense to avoid improper ex post facto application
How later courts described this case
- stating the general rule applicable in the federal system that the sentencing court must apply the sentencing guidelines manual in effect at the time of sentencing, but noting that where such retroactive application would result in harsher penalties, the court must apply the manual in effect at the time of the offense to avoid improper ex post facto application
- recognizing that amendments which clarify, rather than substantively change, the guidelines do not present ex post facto issues when they are applied retrospectively, but holding that 1991 amendment to section 2J1.2’s background commentaiy “is not a clarifying amendment but, rather, a substantive change”
- concluding that, "while the one-book rule ... certainly can compel application of the earlier Manual," the Ex Post Facto clause may apply so as to prohibit the application of the later Manual to all counts
- distinguishing Resko on its facts but holding, in reliance on Resko, that a reviewing court must satisfy itself that the trial court engaged in a meaningful assessment of whether there was any prejudice to defendant, and that when a trial court fails to conduct a meaningful assessment, a reviewing court cannot evaluate its conduct and, thus, remand for a new trial is proper
Written by the judges who cited it.
The opinion
SUR PETITION FOR REHEARING BEFORE ORIGINAL PANEL
Before: GREENBERG, ROTH, and ROSENN, Circuit Judges.
The petition for panel rehearing filed by appellee United States of America in the above entitled case having been submitted to the judges who participated in the decision of this court, and no judge who concurred in the decision having asked for rehearing, the petition for rehearing is denied. In denying the motion the court observes that, as set forth in footnote 17, page 35 of the slip opinion, the government did not argue that we should apply a Guideline Manual later than the 1989 Guideline Manual to either Group 2 or Group 3 if we apply the 1989 Manual to Group one.
SUR PETITION FOR REHEARING
Before: SLOVITER, Chief Judge, and BECKER, STAPLETON, MANSMANN, GREENBERG, HUTCHINSON, SCIRICA, COWEN, NYGAARD, ROTH, LEWIS, McKEE, SAROKIN, and ROSENN, Circuit Judges.
The petition for rehearing filed by the appellant, Richard 0. Bertoli, in the above captioned matter having been submitted to the judges who participated in the decision of this court and to all the other available circuit judges of the court in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in regular active service not having voted for rehearing by the court in banc, the petition for rehearing is denied.