Petition for Writ of Certiorari — Hensley v. United States (No. 09-480)
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Suprame Court, U.S.
(1) FILED
09-480 OCT 21 2009
No. OFFICE OF THE GLERK
In the Supreme Court of the United States
MATTHEW HENSLEY,
Petitioner,
Le
UNITED STATES OF AMERICA,
Respondent.
On Petition for a Writ of Certiorari to the
United States Court of Appeals
For the Seventh Circuit
PETITION FOR A WRIT OF CERTIORARI
DAN M. KAHAN ANDREW J. PINCUS
Scott L. SHUCHART Counsel of Record
Yale Law School CHARLES A. ROTHFELD
Supreme Court Clinic Mayer Brown LLP
127 Wall Street 1999 K Street, NW
New Haven, CT 06511 Washington, DC 20006
(203) 432-4800 (202) 263-3000
P. JEFFREY SCHLESINGER
8396 Mississippi Street,
Suite G
Merrillville, IN 46410
(219) 736-5555
Counsel for Petitioner
PND PAS
WILSON-EPES PRINTING CO., INC. — (202) 789-0096 - WASHINGTON, D.C. 20002
]
QUESTION PRESENTED
Whether a sentencing judge may, consistent with
the Ex Post Facto Clause, employ the version of the
U.S. Sentencing Guidelines Manual in effect at the
time of sentencing even though it produces a longer
sentence calculation than the Guidelines Manual in
effect at the time the offense was committed.
il
TABLE OF CONTENTS
Page
QUESTION PRB titi cissccesescsscesescessssscccesscccscccens 1
TABLE, OF AGF eee sees iten ravens ccccenecssesccsccscess lv
OPIN ODE Bem erase ctcasesevccessvecccseese 1
oD RES re cea a cass osnevsescccscceees 1
CONSTITUTIONAL AND REGULATORY
PROVISIONING FIN Wire te crarssnctsssecsssscccsscscccccsccsceceees 1
STAT ENING © ccecciccesse eatin tanasseccessscccccenss 2
A. Legal ERR arr teen ea ite tassaisessccvsceccsccccces.. 4
B. Proce mee icacacccescnescscccccee. 7
REASONS FOR GRANTING THE PETITION ......... 9
A. The Courts Of Appeals Are Divided On
The Question Whether Advisory
Sentencing Guidelines Implicate The Ex
Post Fact Gretta cones cccscccccccc ees 10
1. The Seventh And D.C. Circuits Are
Clearly Divided On The Question
Premera iakincnesoccceccsces 10
2. Several Circuits Have Indicated
Agreement With Either The Seventh
Circuit’s Holding In Demaree Or The
D.C. Circuit’s Holding In Turner.............. 14
B. The Question Presented Recurs
Frequently And Requires Resolution............. 20
C. The Ex Post Facto Clause Prohibits The
Retroactive Use By A District Court Of
A Version Of The Guidelines That
Calculates A Harsher Sentence. ................0... 24
ili
TABLE OF CONTENTS—continued
Page
1. Measures That Sufficiently Risk
Prolonging The Period Of
Punishment Violate The Ex Post
Ny I ies i cheer ciassuntencecauee 24
2. Retroactively Applying The 2007
Guidelines To Petitioner Violated
The Ex Post Facto Clause. ..................sses0. 26
CII oo cic nicnaccuciusteascdadbicnadcanauadsecsasasacsecacecsy ae
APPENDICES
A. United States v. Hensley, No. 08-1204
(7th Cir. July 23, 2009), reported at
ee ec cd anndeea la
B. United States v. Hensley, No. 2:06 CR
168, Sentencing Transcript (N.D. Ind.
Jan. 11, 2008), not reported ......................6. 15a
1V
TABLE OF AUTHORITIES
Page(s)
CASES
California Department of Corrections
v. Morales, 514 U.S. 499 (1995)............... 12, 25, 27
Cummings v. Missouri,
as ccna gnubeneneneaveneba 27
Fletcher v. Peck,
a eda 27
Fletcher v. Reilly,
GOe Be eT CRIA. CAP. BOG) ones. ccsccccccscecccnvesesses 14
Gall v. United States,
Be i es ED viisecvecncereovesssveseccenecasscars passim
Garner v. Jones,
n,n is cupcdadunennensecuned passim
Kimbrough v. United States,
Re IE iv oiinvc sic dnasvscdsevacessexeseaseccces 3,4, 5
Lindsey v. Washington,
ee ID Os cavscncncnncnceucecesvanexevevseanseuts 12
Michael v. Ghee,
498 F.3d S72 (6th Cir. 2007)...........ccccccccccscsccescese 18
Miller v. Florida,
OE Eg Ly 5: ra 2, 5-6, 26, 29
Nash v. United States, Nos.
1:07-cr-00002, 1:08-cv-00620,
2009 WL 262217
rs MM, i OID oocccccccacaccccesteccdeaccvscceccscees 22
Rita v. United States,
Ra ee. ) ee 3, 28, 32
Spears v. United States,
TBO GS. Ce. BOO CHOOB)......ccccscccccccsccssscccoccccscoosscsecses 5
United States v. Alonzo,
SOG FG OO1 COE CAP. BODG).......ccccescccecccccccccscesees 28
United States v. Anderson,
570 F.Sd 10265 (8th Cir. 2009)..................c0ccececseee 18
United States v. Andres,
178 Fed. Appx. 736 (9th Cir. 2006) ..................... 19
United States v. Ausburn,
S02 F.o0 ole (oe Cir. 2007) .........................02...0.. 22
United States v. Austin,
STG FOG SOO CE Cir. 2007). .......0.00.c0cc0000000000ceee: yy
United States v. Barton,
BOG Fee Oe Cees CAP. BOOG)...........ccccccccscccccosescees 17
United States v. Booker,
543 U.S. 220 (2005).......cccccecccccsecsecseseeceees 2, 3, 4, 29
United States v. Boyd,
317 Fed. Appx. 415 (5th Cir. 2009) ..................2.. 20
United States v. Boyle,
283 Fed. Appx. 825 (2d Cir. 2007)....................0.. 21
United States v. Braggs,
196 Fed. Appx. 442 (8th Cir. 2006) ..................... 22
United States v. Burke,
252 Fed. Appx. 49 (6th Cir. 2007) ...............ccscsees 22
United States v. Carter,
SOO Fe BE CBE CAF. BOOT) ones ccccceccccccccceccccccccees 18
United States v. Cruzado-Laureano,
406 F.06 S70 Cat Cir. ZOOS) ......c.cscccvccsecccesess 16, 17
United States v. Davis,
307 F.Sa 340 (Gth Cir. 2005)...........cccccscccoscosccscess 22
United States v. Demaree,
S56 7.56 701 (7th Cir. BO0G)............0..000000000. passim
United States v. Dorcely,
464 F.3d 366 (D.C. Cir. 2006) .........ccccccccsccsonsescess 28
United States v. Doyle,
621 F. Supp. 2d 345 (W.D. Va. 2009) ....:............. 22
United States v. Duane,
533 F.3d 441 (6th Cir. 2008).............. 16, 17, 18, 20
United States v. Fowler,
No. 08-16413, 2009 WL 2515735
Re Gee, FARMER, BU IED ss ecnvccescscrscccvcessvess cvaabeaan 22
United States v. Gilman,
Be ee te CEM GEE. BOWE) vcccscccvecvecvccsesccsecscecses 16
United States v. Green,
436 F.3G 449 C46 Cir. 2O0G)...........ccccccccseccorccscees 28
United States v. Harmon,
Ee ee FP CUE GP, BOOB)... cccccccscerccsccccsccccses 22
United States v. Hill,
ey TE i ) 13
United States v. Hoff,
215 Fed. Appx. 720 (10th Cir. 2007) .....ccccccceceeee. 22
United States v. Iskander,
SOF Fe BOe CEG CP. BOOG).......cccccscccoccsccccsccccees 22
United States v. Jaca-Nazario,
Oe Wc OP CGO GAR. BOG) ccccscccccccccccccccccoccsescececs 16
United States v. Jeross,
521 F.3d 662 (6th Cir. 2O0S)...............ccccrcccssecccses 22
United States v. Jones,
254 Fed. Appx. 711 (10th Cir. 2007) ...........0..0.... 22
United States v. Kandirakis,
441 F. Supp. 2d 282 (D. Mass. 2006)................... 23
United States v. Kilgarlin,
157 Fed. Appx. 716 (5th Cir. 2005) ..................... 22
United States v. Kilkenny,
BO ie LOM CRG GAL. BOE) onceccscccscscccccssssecee 21-22
Vl1l
United States v. Kladek, No.
08CR0290(PJS/AJB), 2009 WL 2835158
Re Is ME EN I oo sccccsaneceveteuseactecceercousnte 22
United States v. Kristl,
437 F.3d 1050 (10th Cir. 2006)...................c cee 28
United States v. Lacefield,
146 Fed. Appx. 15 (6th Cir. 2005) ..................8. 22
United States v. Larrabee,
436 F.3d 890 (Sth Cir. 2006).............0.....cccccceccee0 18
United States v. Lewis,
603 F. Supp. 2d 874 (E.D. Va. 2009)................... 22
United States v. Lincoln,
413 F.3d 716 (8th Cir. 2005)................ nee 28
United States v. Mathis,
239 Fed. Appx. 513 (11th Cir. 2007) ................... 22
United States v. McBirney,
261 Fed. Appx. 741 (5th Cir. 2008) ................08. 21
United States v. McGowan,
315 Fed. Appx. 338 (2nd Cir. 2009)..................... 21
United States v. Meegan,
No. 08-2420, 2009 WL 1464881
(Tth Cie. May $7, 200G)......00...0.0.0s:s0sececsscesseesereess 13
United States v. Mix,
Be Fe Pe Ce Geis BO vc cnckvitcecccccececcsscccsszcees 22
United States v. Mykytiuk,
BA Fee OTe Gs OD vekcccccecescesiccccssencccrsnes 28
United States v. Patterson,
576 F.3d 481 (7th Cir. 2009).................... uakicsnaes 13
United States v. Pruitt,
602 F.3d 1154 (10th Cir. 2007)............................ 28
United States v. Reasor,
418 F.3d 466 (Sth Cir. 2O0B)............rcccccccssescvcceees 22
vill
United States v. Restrepo-Suares,
516 F. Supp. 2d 112 (D.D.C. 2007)...........00.-. 22-23
United States v. Rising Sun,
522 F.3a SSS Cth Cir. ZOOB)..............cccccccccccccseces 19
United States v. Rodarte- Vasquez,
488 F.3d 316 (5th Cir. 2007)......................006. 19, 20
United States v. Sanchez,
BE te GS Cee Gee BOOS) occ cccceccccccscsvccscecscescess 20
United States v. Schnell,
982 F.2d 216 (7th Cir. 1992) ........ccccccceceseeeeeeees 2,6
United States v. Scott,
629 F.3d 1290 (10th Cir. 2008)..............cccccccccccree 22
United States v. Seacott,
BD Fe BO Cees GAP. LODE) ..ccccccccccccccoccccevscceses 2,6
United States v. Share,
223 Fed. Appx. 103 (3rd Cir. 2007) ................c0008 22
United States v. Shira,
286 Fed. Appx. 650 (11th Cir. 2008) ................... 22
United States v. Sinclair,
293 Fed. Appx. 235 (4th Cir. 2008) .................... 22
United States v. Stevens,
462 F.3d 1169 (9th Cir. 2006)........................ 18-19
United States v. Turner,
548 F.3d 1094 (D.C. Cir. 2008)...............0000 passim
United States v. Wilms,
By 5 28
United States v. Wood,
Me re FE EG, OED cecccecsincesnsvecencevecscoeces 22
United States v. Zirger,
257 Fed. Appx. 59 (10th Cir. 2007) ..................... 22
Weaver v. Graham,
BED UF, BE GBI osovssesco sn escsnesscsscccccesossscsese: 12, 27
1x
STATUTES
10 UB eee aires cnicsevessccosevecscescoseees 6,7
16 UGC, We idtesccorsesssicvesecsccocececsceevee. 4, 28
OTHER AUTHORITIES
Douglas Berman’s Sentencing Law and Policy
Blog, at http://sentencing.typepad.com
(Dec. 5, 2008 and April 17, 2009) ....................008 24
C. Clayman & H. Protass, The Ex Post Facto
Clause in the Post-Booker World, New York
Li Be visiscsesescccccccscnsccccsccccees 24
J. Dillon, Doubting Demaree, 110 W. Va. L.
OG, Fe ciicrcsscceccsescscccssccecsecces 24
D. Levy, Defending Demaree: The Ex Post
Facto Clause’s Lack of Control Over the
Federal Sentencing Guidelines After
Booker, 77 Fordham L. Rev. 2623 (2009)...... 24-25
A. Robbins & L. Lao, The Effect of
Presumptions: An Empirical Examination
of Inter-Circuit Sentencing Disparities
after United States v. Booker (Nov. 4, 2007)
(unpublished manuscript), available at
http://tinyurl.com/EffectofPresumptions............. 32
U.S. Sentencing Commission, Final Quarterly
Data Report: Fiscal Year 2006 (2006) ................. 30
U.S. Sentencing Commission, Final Quarterly
Date Report: Fiscal Year 2007 (2007) ........... 15, 30
U.S. Sentencing Commission, Final Quarterly
Data Report: Fiscal Year 2008 (2008) .................30
U.S. Sentencing Commission,
Final Report on the Impact of
United States v. Booker on
Federal Sentencing (2006) .................. 14-15, 30, 31
xX
U.S. Sentencing Commission,
Preliminary Quarterly Data
| II |
U.S. Sentencing Commission
Guidelines Manual
( - cccevevasncddevoueesoceuuns 1,5
§ 2G1.3 (2005 & 2006)..........cccccccccceccessecceseeseeseeeeees 7
Appendix C supplement (2008) ..................... 23, 24
PETITION FOR A WRIT OF CERTIORARI
Petitioner Matthew Hensley respectfully peti-
tions for a writ of certiorari to review the judgment of
the United States Court of Appeals for the Seventh
Circuit in this case.
OPINIONS BELOW
The opinion of the court of appeals (App., infra,
la-14a) is reported at 574 F.3d 384. The district
court’s oral ruling on sentencing (App., infra, 15a-
30a) is not reported.
JURISDICTION
The judgment of the court of appeals was entered
on July 23, 2009. This Court’s jurisdiction rests on 28
U.S.C. § 1254(1).
CONSTITUTIONAL AND
REGULATORY PROVISIONS INVOLVED
U.S. Const. Art. I, § 9 provides in relevant part:
No Bill of Attainder or ex post facto Law
shall be passed.
The U.S. Sentencing Guidelines Manual § 1B1.11
(2008) provides in relevant part:
(a) The court shall use the Guidelines Ma-
nual in effect on the date that the defendant
is sentenced.
(b)(1) If the court determines that use of the
Guidelines Manual in effect on the date that
the defendant is sentenced would violate the
ex post facto clause of the United States Con-
stitution, the court shall use the Guidelines
Manual in effect on the date that the offense
of conviction was committed.
2
STATEMENT
Prior to United States v. Booker, 543 U.S. 220
(2005), the courts of appeals agreed that the Ex Post
Facto Clause barred a court from using the United
States Sentencing Guidelines Manual] in effect on the
date of sentencing, if that Manual called for a harsh-
er sentence than the Manual in effect at the time the
defendant committed his offense. United States v.
Seacott, 15 F.3d 1380, 1386 (7th Cir. 1994); United
States v. Schnell, 982 F.2d 216, 218 (7th Cir. 1992)
(collecting cases); see also Miller v. Florida, 482 U.S.
423 (1987) (concerning Florida sentencing guide-
lines).
In the wake of this Court’s holding in Booker
rendering the Guidelines advisory, the courts of ap-
peals have reached conflicting conclusions about
whether the Ex Post Facto Clause is violated by the
use of a post-offense version of the Guidelines that
calculates a harsher sentence.
The Seventh Circuit has determined that the
Guidelines no longer implicate the Ex Post Facto
Clause. It held in the present case that the district
court properly used the Guidelines Manual in effect
at the time of petitioner’s sentencing, even though it
produced a 43- to 54-month increase in petitioner’s
recommended Guidelines sentencing range, as com-
pared to the Guidelines Manual in effect at the time
petitioner committed his offense. See App. 6a.
The D.C. Circuit has reached the opposite con-
clusion. It determined in United States v. Turner
that “the existence of discretion does not foreclose an
ex post facto claim” and held that the Clause contin-
ues, post-Booker, to bar retroactive application of
3
harsher Guidelines. 548 F.3d 1094, 1100 (D.C. Cir.
2008).
The other courts of appeals’ statements regard-
ing the issue indicate conflicting views regarding this
question. And the issue recurs with great frequency:
more than 55 cases since Booker have raised the
question regarding application of the Ex Post Facto
Clause presented here. See page 20 & note 8, infra.
The lower courts’ disagreement—and the result-
ing disparate treatment of similarly-situated defen-
dants—stems from their conflicting views regarding
an important issue of Ex Post Facto Clause jurispru-
dence: whether the formal status of a legal rule con-
clusively determines the applicability of the Ex Post
Facto Clause, or whether the legal rule’s potential
and practical effects are relevant to the analysis, as
this Court held in Miller v. Florida, supra.
Those potential and practical effects are disposi-
tive here. This Court has made clear that a judge’s
use of the Guidelines at sentencing is formally dis-
cretionary: one factor among many to be taken into
account, and subject to light appellate review. See
Kimbrough v. United States, 128 S. Ct. 558, 564
(2007); Booker, 543 U.S. 220. But district courts are
still required by law to calculate the Guidelines
range as “the starting point and initia] benchmark,”
Gall v. United States, 128 S. Ct. 586, 596 (2007); a
court of appeals may apply a presumption of reason-
ableness to a within-Guidelines sentence, see Rita,
551 U.S. at 347; and in practice, over 80% of all fed-
eral sentences, even today, continue to conform with
the Guidelines, see pp. 28-32, infra. And Congress
has charged the U.S. Sentencing Commission by sta-
tute with prescribing Guidelines to avoid unwar-
4
ranted sentencing disparities, see Rita v. United
States, 551 U.S. 338, 347-348 (2007).
This Court should grant review to clarify the
particular question regarding the status of the
Guidelines under the Ex Post Facto Clause and to
reaffirm its prior holdings that a legal rule’s formal
status is not dispositive in determining the Clause’s
applicability.
A. Legal Background
1. The Sentencing Reform Act of 1984 (“SRA”),
Pub. L. No. 98-473, 98 Stat. 1987 (codified as
amended in scattered sections of 18 & 28 U.S.C.), es-
tablished and delegated authority to the U.S. Sen-
tencing Commission to write sentencing guidelines to
carry out Congress’s basic sentencing objectives of
achieving fairness and proportionality, avoiding un-
warranted sentencing disparities, and maintaining
flexibility for individualized sentences when war-
ranted. The Guidelines establish base offense levels
for iederal crimes, provide a method for determining
a defendant’s criminal history, and recommend de-
partures based on the circumstances of the offense
and the offender’s criminal history. Each year, the
Sentencing Commission issues a new Guidelines
Manual, which incorporates amendments to the prior
version of the Guidelines.
Courts use the Guidelines Manual in the sen-
tencing process to calculate a final offense level,
which translates into a recommended sentencing
range when cross-referenced with the defendant’s
history category. Prior to Booker, judges were re-
quired to sentence defendants according to the
Guidelines. Departures from the Guidelines’ recom-
D
mendations were permitted but required justifica-
tion. 18 U.S.C. § 3553(b)(1) (2003).
In Booker, this Court held that the mandatory
nature of the Guidelines violated the Sixth Amend-
ment. It struck down the provisions of the SRA that
made the Guidelines mandatory and that established
standards of review on appeal. Booker, 543 U.S. at
245. Thus, following Booker, the Guidelines sentence
is advisory to the district court, not mandatory. See
Kimbrough, 128 S. Ct. at 564.
Four Supreme Court decisions following Booker
further clarified the status of the Guidelines. Rita,
established that the courts of appeals may apply a
presumption of reasonableness to within-Guidelines
sentences. Gall further clarified that all sentences,
“whether inside, just outside, or significantly outside
the Guidelines range” are subject to the same abuse-
of-discretion standard on appellate review, with no
heightened standard for sentences outside of the
Guidelines range. 128 S. Ct. at 591. On the same day
as its decision in Gall, this Court held in Kimbrough
that “the Guidelines * * * now serve as one factor
among several that courts must consider in deter-
mining an appropriate sentence,” and that although
the judge “must include the Guidelines range in the
array of factors warranting consideration,” the judge
can find a policy disagreement with the Guidelines or
decide that a Guidelines sentence is “greater than
necessary.” 128 S. Ct. at 564 (internal quotation
marks omitted).
Most recently, Spears v. United States held that
“district courts are entitled to reject and vary cate-
gorically from the crack-cocaine Guidelines based on
a policy disagreement with those Guidelines.” 129 S.
Ct. 840, 843-844 (2009).
6
2. Since 1992, the Guidelines have specified that
a sentencing court is to use the Guidelines Manual
“in effect on the date that the defendant is sen-
tenced,” except when such use “would violate the ex
post facto clause,” in which case “the court shall use
the Guidelines Manual in effect on the date that the
offense of conviction was committed.” U.S.S.G.
§ 1B1.11(a), (b)(1) (2008).
Before Booker, the lower courts had reached a
consensus that use of the Guidelines Manual in ef.-
fect at the time of sentencing would violate the Ex
Post Facto Clause if that Manual provided for a
harsher sentence than the Manual in effect at the
time of the defendant’s offense. See United States v.
Seacott, 15 F.3d 1380, 1386 (7th Cir. 1994); United
States v. Schnell, 982 F.2d 216, 218 (7th Cir. 1992)
(collecting cases). Those rulings rested on this
Court’s holding in Miller v. Florida, 482 U.S. 423
(1987), that retroactive application of Florida’s sen-
tencing guidelines (which resembled the pre-Booker
federal Sentencing Guidelines) violated the Ex Post
Facto Clause.
Even after Booker, the government agreed that
the advisory nature of the Guidelines did not exempt
them from Ex Post Facto analysis. It reasoned that
the federal sentencing system still operated suffi-
ciently like the Florida guideline system considered
in Miller that the Ex Post Facto Clause would apply
to federal Guidelines revisions that increased a de-
fendant’s Guidelines range. It was only after the
Court’s decisions in Gall and Kimbrough that the So-
licitor General instructed the government (in August
2008) to abandon its position that the Ex Post Facto
Clause bars the use of the Guidelines in effect at the
time of sentencing when those Guidelines result in a
7
higher advisory Guidelines range. See U.S. Br. at 25-
28, United States v. Rooks, No. 08-4725, 2009 WL
872121 (4th Cir. Feb. 2, 2009).
B. Proceedings Below
In 2006, petitioner was charged in a one-count
indictment with attempting to solicit a minor over
the Internet in violation of 18 U.S.C. § 2422(b). Peti-
tioner was convicted in the Northern District of Indi-
ana, and was originally scheduled to be sentenced on
October 31, 2007. See App. 5a-6a. The statutory min-
imum sentence for petitioner's offense was 120
months. 18 U.S.C. § 2422(b). The 2006 Guidelines
Manual, in effect on the originally scheduled sen-
tencing date, recommended a base offense level of 24
and a sentencing range of between 78 and 97
months. App. 6a.
The government requested that petitioner’s sen-
tencing hearing be postponed to January 11, 2008, by
which time the 2007 Guidelines Manual was in ef-
fect. The 2007 Manual included a four-point increase
in the base offense level over the level specified in
the 2006 Manual—to 28—and calculated a recom-
mended sentencing range of 121 to 151 months. Ibid.
This range represented a 43- to 54-month increase
from the 2006 recommended Guidelines range.
At the 2008 sentencing hearing, petitioner ob-
jected to the court’s use of the 2007 Guidelines in de-
termining his sentence, arguing that such use would
violate the Ex Post Facto Clause.! However, the dis-
trict court stated:
1 Petitioner has argued throughout his appeal that he should
have been sentenced under the 2006 Guidelines, which were in
effect on October 31, 2007 (the date on which petitioner was
8
I’m going to apply the [2007] guidelines that
are in effect on today’s date because that’s
what the Supreme Court directs me to do.
*** — *** believe that what the Supreme
Court and what the Seventh Circuit has di-
rected more recently is that I am to apply the
guidelines that are in effect on the day of the
sentencing.
App. 20a-2la. After calculating the recommended
Guidelines range, the court concluded, “I do think
that a guideline sentence in this case is altogether
appropriate. And I have calculated the guidelines to
be 121 months to 151 months given the guidelines in
effect at sentencing.” Jd. at 24a-25a. The court ulti-
mately sentenced petitioner to 125 months—at the
low end of the 2007 Guidelines range, but well above
the 2006 Guidelines range.
Petitioner appealed the sentencing decision on
Ex Post Facto grounds. The Court of Appeals for the
Seventh Circuit affirmed, relying on its prior deci-
sion in United States v. Demaree, 459 F.3d 791 (7th
Cir. 2006) (Posner, J.), cert. denied, 551 U.S. 1167
(2007). See App. 12a-14a.
originally scheduled to be sentenced). At the time of petitioner’s
offense, the 2005 Guidelines were in effect. However, the 2005
Guidelines recommend the same base offense level and point
enhancements as the 2006 Guidelines for petitioner’s offense.
See U.S. Sentencing Guidelines Manual § 2G1.3 (2006); U.S.
Sentencing Guidelines Manual § 2G1.3 (2005). Therefore, had
the sentencing taken place on October 31, 2007, use of the 2006
Guidelines would have resulted in the same calculated sentenc-
ing range as use of the 2005 Guidelines, and therefore would
not have implicated the Ex Post Facto Clause. For this reason,
petitioner argued that the court should have used the 2006
Guidelines in calculating his sentence.
9
The Demaree court had concluded that “the ex
post facto clause should apply only to laws and regu-
lations that bind rather than advise,” and that be-
cause the Guidelines are advisory under Booker, a
district court’s reference to the most recent Guide-
lines Manual does not offend the Ex Post Facto
Clause even if that Manual recommends a harsher
sentence than the one in effect when the defendant
committed the offense. 459 F.3d at 795.
REASONS FOR GRANTING THE PETITION
The clear, acknowledged conflict among the
courts of appeals on the question presented is pro-
ducing, and will continue to produce, disparate out-
comes on substantially identical facts. Each year, for
each amendment to the Guidelines that upwardly
revises the recommended sentence for an offense, de-
fendants who commit offenses prior to a pertinent
amendment but are sentenced thereafter will receive
differential treatment at sentencing based solely on
the circuits in which their convictions arose.
The root of the disagreement among the lower
courts hes in their conflicting interpretations of this
Court’s Ex Post Facto Clause decisions—in particu-
lar, whether the Guidelines’ formal advisory status is
dispositive of the Ex Post Facto inquiry or whether
their functional importance also must be considered.
As illustrated by the district court’s use of the Guide-
lines below, the Guidelines in practice continue to
exert a very significant gravitational force at sen-
tencing.
This Court’s post-Booker decisions make clear
that “a district court should begin all sentencing pro-
ceedings by correctly calculating the applicable
Guidelines range,” using the guidelines as the “start-
10
ing point and initial benchmark” for the sentence,
and only then considering other factors. Gall, 128 S.
Ct. at 596 (emphasis added). Unless the question
presented is resolved by this Court, district courts in
the Seventh Circuit and perhaps elsewhere will be-
gin the sentencing process by calculating a sentence
according to Guidelines that may be substantially
different (and more unfavorable) than those in place
on the date of the crime for which these defendants
are sentenced. Whether such a practice violates the
Ex Post Facto Clause—and, more generally, what
standards courts should apply in resolving Ex Post
Facto Clause claims—are frequently-recurring, im-
portant questions in urgent need of resolution by this
Court.
A. The Courts Of Appeals Are Divided On
The Question Whether Advisory Sen-
tencing Guidelines Implicate The Ex
Post Facto Clause.
1. The Seventh And D.C. Circuits Are Clear-
ly Divided On The Question Presented.
The Seventh and D.C. Circuits have reached
squarely conflicting conclusions regarding the ques-
tion whether, after this Court’s decisions rendering
the Guidelines advisory, a sentencing judge’s appli-
cation of a newer, harsher version of the Guidelines,
which was not in effect at the time of the defendant’s
offense, violates the Ex Post Facto Clause.
a. The Seventh Circuit holds that “the ex post
facto clause should apply only to laws and regula-
tions that bind rather than advise” and, therefore,
has no applicability to the Guidelines in light of
Booker. Demaree, 459 F.3d at 795.
11
The 2000 Guidelines in place at the time Dema-
ree committed her offenses called for a sentencing
range of 18 to 24 months for a defendant with her
criminal history. However, Demaree was sentenced
under the 2004 Guidelines effective at the time of
her sentencing, which recommended a 27- to 33-
month sentence at the same criminal history level.
The district judge sentenced Demaree to 30 months
but stated that, if the 2000 version had been applica-
ble, he would have sentenced her to only 27 months.
Demaree appealed, arguing that the judge’s applica-
tion of the 2004 Guidelines violated the Ex Post Fac-
to Clause. See Demaree, 459 F.3d at 792-793.
On appeal, the government confessed error,
agreeing with Demaree that the district court had
improperly used the later, harsher version of the
Guidelines in violation of the Ex Post Facto Clause.
Id. at 793. (At that time, the Solicitor General had
not yet instructed the government to abandon its po-
sition that the Ex Post Facto Clause bars the use of
the Guidelines in effect at the time of sentencing
when those Guidelines result in a higher advisory
Guideline range. See U.S. Br. at 27, United States v.
Rooks, No. 08-4725, 2009 WL 872121 (4th Cir. Feb.
2, 2009); page 6, supra.)
The Seventh Circuit, speaking through Judge
Posner, nevertheless affirmed Demaree’s sentence,
holding that the district court’s use of the later, more
severe Guidelines did not violate the Ex Post Facto
Clause. In reaching its conclusion, the court rejected
a “literal{]” “interpret[ation]” of what it described as
this Court’s “variously stated” formulas for testing
whether a measure violates the Ex Post Facto
Clause, as established in Garner v. Jones, 529 U.S.
244, 255-256 (2000), California Department of Cor-
12
rections v. Morales, 514 U.S. 499, 506 n.3 (1995),
Weaver v. Graham, 450 U.S. 24, 29 (1981), and Lind-
sey v. Washington, 301 U.S. 397, 401-02 (1937) (per
curiam). Demaree, 459 F.3d at 794.
The Seventh Circuit acknowledged that this
Court’s test is whether a measure “places the defen-
dant at a disadvantage * * * compared to the law as
it stood when he committed the crime,” or “imposed a
significant risk of enhanced punishment.” Ibid. The
court of appeals also said that, “interpreted literally,”
this test leads to the conclusion that the advisory
Guidelines still implicate the Ex Post Facto Clause.
Ibid.
The Seventh Circuit nonetheless held that “the
ex post facto clause should apply only to laws and
regulations that bind rather than advise.” Jd. at 795
(emphasis added). In arguing that the post-Booker
Guidelines fall in the “laws * * * that advise” catego-
ry, the court of appeals relied heavily on its under-
standing that a judge’s selection of sentence “is dis-
cretionary and subject therefore to only light appel-
late review.” Ibid. The court also stated that any oth-
er holding would be an exercise in “futility,” because
“whenever a law or regulation is advisory, the judge
can always say not that he based his sentence on it
but that he took the advice implicit in it.” Jbid.
The Seventh Circuit has subsequently adhered to
its holding in Demaree, including in the instant case.
See App. 13a-14a.
b. The D.C. Circuit in Turner expressly rejected
Demaree’s holding. Because the Guidelines still serve
as an anchor and starting point for calculating sen-
tences, the D.C. Circuit concluded that a court’s deci-
sion about which version of the Guidelines to use
13
when sentencing a defendant significantly affects the
severity of the resulting sentence. See Turner, 548
F.3d at 1099-1100. Thus, the D.C. Circuit held, the
Guidelines still impheate the Ex Post Facto Clause.
Turner, 548 F.3d at 1099-1100.
Turner, relying on this Court’s decision in Garn-
er, determined that “(t]he controlling inquiry * * *’ is
how the [relevant] authority ‘exercises discretion in
practice’ and whether ‘exercise[s] of discretion .. . ac-
tually create[] a significant risk of prolonging [an
inmate’s] incarceration.” bid. (quoting Fletcher v.
Reilly, 433 F.3d 867, 876 (D.C. Cir. 2006) and Garn-
er, 529 U.S. at 251). The D.C. Circuit applied the
Garner test to the facts of Turner: When Turner
committed his offense in 2001, the applicable Guide-
lines base offense level was 10 and his Guidelines
sentencing range was 21 to 27 months; by 2006, the
former was 14 and the latter 33 to 41 months. Jd. at
1096. Applying the 2006 Guidelines, the district
court sentenced Turner to 33 months. /bid. The D.C.
Circuit found that “using the 2006 Guidelines
created a substantial risk that Turner’s sentence was
more severe, thus resulting in a violation of the Ex
Post Facto Clause.” Jd. at 1100.
In concluding that retroactive application of a
harsher version of the Guidelines continues to impli-
cate the Ex Post Facto Clause, the court referenced
this Court’s decision in Rita that “appellate courts
may apply a presumption of reasonableness to a dis-
trict court sentence calculated in conformity with the
Guidelines,” and that therefore, “judges are more
likely to sentence within the Guidelines.” Jd. at 1099.
The Turner court also noted that, in fact, “most fed-
eral sentences fall within Guidelines ranges even af-
ter Booker’ and that the “impact of Booker’ on
14
judges’ deviation from the Guidelines has been “mi-
nor.” /bid. (citing U.S. Sentencing Commission, Final
Report on the Impact of United States v. Booker on
Federal Sentencing 57 (2006); U.S. Sentencing Com-
mission, Final Quarterly Data Report: Fiscal Year
2007, at 1 (2007)).
The D.C. Circuit understood that the deference
permissibly accorded to within-Guidelines sentences
under Rita provides an incentive to district court
judges to issue within-Guidelines sentences. And it
recognized that, empirically, most sentences remain
in conformance with the Guidelines. Therefore, it
concluded, a judge’s decision about which version of
the Guidelines to use significantly influences the
“risk of increasing the measure of punishment at-
tached to the [defendant’s] crimes.” Garner, 529 U.S.
at 250 (internal citations and quotation marks omit-
ted).
2. Several Circuits Have Indicated Agree-
ment With Either The Seventh Circuit’s
Holding In Demaree Or The D.C. Cir-
cuit’s Holding In Turner.
No other court of appeals has squarely decided
whether the Ex Post Facto Clause applies to retroac-
tive application of the now-advisory Guidelines. The
First, Sixth, Eighth, and Ninth Circuits, however,
have indicated agreement with the D.C. Circuit that
retroactive application of a harsher version of the
Guidelines still violates the Ex Post Facto Clause. By
contrast, the Fifth Circuit has suggested—in seem-
ing agreement with the Seventh Circuit—that the
Guidelines no longer implicate the Ex Post Facto
Clause because of their advisory nature, and that a
court need never apply the Manual in effect at the
15
time of the defendant’s offense, even if a newer,
harsher version is in effect at the time of sentencing.
a. First Circuit. Through several cases—from one
decided immediately following Booker to a 2608 rul-
ing—the First Circuit has reiterated, “[wje expect
that the Ex Post Facto Clause [still] requires applica-
tion of the older Guidelines if those would be more
lenient.” United States v. Jaca-Nazario, 521 F.3d 50,
56 (1st Cir. 2008).
The clearest indication of the First Circuit’s
agreement with Turner is the decision United States
v. Gilman, 478 F.3d 440 (1st Cir. 2007).2 In Gilman,
the First Circuit acknowledged Demaree’s holding
but stated in dicta that such a position was “doubtful
in this circuit,” and cited an early post-Booker case—
United States v. Cruzado-Laureano, 404 F.3d 470
(1st Cir. 2005), cert. denied, 546 U.S. 1009—in sup-
port. Gilman, 478 F.3d at 449. In Cruzado-Laureano,
the First Circuit had implied that, post-Booker, it
continued to believe that the Guidelines implicate
the Ex Post Facto clause, and that district courts
must apply an earlier version of the Guidelines if ap-
plication of a later version would result in a higher
Guidelines range.®
2 The Sixth Circuit has understood Gilman to indicate the First
Circuit's rejection of Demaree. See United States v. Duane, 533
F.3d 441, 447 n.1 (6th Cir. 2008).
3 In Cruzado-Laureano, the district court, to avoid violating the
Ex Post Facto Clause, sentenced the defendant under the 2000
version of the Guidelines rather than the 2002 version in effect
at sentencing. The First Circuit found that the district court
had erred in doing so, because the version of the Guidelines in
effect at the time of the defendant’s offense was the 2001—not
the 2000—version, and the relevant Guidelines provisions had
not changed between 2001 and 2002. Rather than analyze
1d
b. Sixth Circuit. The Sixth Circuit has also sug-
gested that Booker and its progeny do not disturb
settled circuit law that retroactive application of a
harsher Guidelines Manual violates the Ex Post Fac-
to Clause. In United States v. Duane, the Sixth Cir-
cuit rejected the Seventh Circuit’s “conclu[sion) that
‘the ex post facto clause should apply only to laws
and regulations that bind rather than advise,” 533
F.3d 441, 447 n.1 (6th Cir. 2008) (quoting Demaree,
459 F.3d at 795), and instead “assume[d] arguendo
that a retroactive change to the Guidelines could im-
plicate the Ex Post Facto Clause.” Id. at 447.
In deciding to make this assumption, rather than
embrace the Seventh Circuit’s position, Duane “de-
cline[d] to read” an earlier Sixth Circuit case, United
States v. Barton, 455 F.3d 649 (6th Cir. 2006), cert.
denied, 549 U.S. 1087, “to suggest that a change to
the Guidelines does not raise an ex post facto con-
cern,” because (i) Barton “was concerned with re-
troactively applying Booker—a judicial decision—
rather than a new version of the Guidelines,” (ii) “fol-
lowing Barton[,] this court has continued to examine
the ex post facto implications of applying a revised
version of the Guidelines retroactively,” and (iii) “a
number of other circuits have continued, post-
Booker, to analyze whether applying revised Guide-
lines retroactively violates the Ex Post Facto Clause.”
Id. at 446-447 & 447 n.1.
The Sixth Circuit further observed that the Se-
venth Circuit’s approach “is somewhat inconsistent
with our recognition—in the context of parole guide-
whether the district court’s erroneous application of the 2000
version prejudiced the defendant, the First Circuit reversed and
remanded for resentencing under the 2002 Guidelines. 404 F.3d
at 488-489.
17
lines—that ‘the [Supreme Court has] made clear that
guidelines that affect discretion, rather than
mandate outcomes, are nevertheless subject to ex
post facto scrutiny *** .” Jd. at 447 (quoting Mi-
chael v. Ghee, 498 F.3d 372, 382 (6th Cir. 2007) (cit-
ing Garner, 529 U.S. at 253), cert. denied, 128 S. Ct.
2067 (2008)) (alteration in original).
c. Eighth Circuit. The Eighth Circuit has also
suggested since Booker that “retrospective applica-
tion of the [advisory] Guidelines implicates the ex
post facto clause.” United States v. Carter, 490 F.3d
641, 643 (8th Cir. 2007) (quoting United States v.
Larrabee, 436 F.3d 890, 894 (8th Cir. 2006)4). In
Carter, the Eighth Circuit acknowledged but de-
clined to embrace the Seventh Circuit’s holding in
Demaree “that the ex post facto clause does not apply
to the now-advisory guidelines,” and instead decided
to “proceed to address Mr. Carter’s ex post facto
claim.” Ibid.5 See also United States v. Anderson, 570
F.3d 1025, 1034 n.7 (8th Cir. 2009) (““[W]Je assume
that the Ex Post Facto Clause applies to a district
court’s application of the sentencing guidelines even
after * * * Booker * * * .”) (citing Carter, 490 F.3d at
643).
d. Ninth Circuit. The Ninth Circuit has also sug-
gested that Booker and its progeny do not disturb the
4 Larrabee concerned appellate review of the reasonableness of
a district court’s non-Guidelines sentence with reference to a
version of the Guidelines that was not in effect at the time of
the offense of conviction, not the use of later Guidelines in the
initial Guidelines calculation. 436 F.3d at 893-894.
5 The Carter court ultimately decided that the defendant had
forfeited his Ex Post Facto challenge. Carter, 490 F.3d at 645-
646.
18
pre-Booker consensus that the Guidelines (although
now advisory) implicate the Ex Post Facto Clause.
For example, in United States v. Stevens, the Ninth
Circuit vacated and remanded on Ex Post Facto
grounds a sentence originally calculated post-Booker
by reference to a substantive amendment to the
Guidelines that had not been in effect when the
crime was committed, because “we cannot say on this
record that the court would have imposed the same
360-month sentence had it not erred in its base of-
fense level calculation.” 462 F.3d 1169, 1172 (9th Cir.
2006). See also United States v. Rising Sun, 522 F.3d
989, 993 n.1 (9th Cir. 2008) (stating in dicta that the
district court was “correct” when it “determined that
the Ex Post Facto Clause [would be] implicated” by
using the version of the Guidelines in effect on the
day of sentencing because it called for a higher base
offense level than the Guidelines in effect at the time
of the offense of conviction).®
e. Fifth Circuit. In United States v. Rodarte-
Vasquez, the Fifth Circuit concluded that the district
court’s retroactive application of a harsher version of
the Guidelines at a pre-Booker sentencing “consti-
tuted an ex post facto violation.” 488 F.3d 316, 324
(5th Cir. 2007). However, in her concurring opinion,
Chief Judge Jones clarified that the court had not
6 See also United States v. Andres, 178 Fed. Appx. 736, 741 (9th
Cir. 2006) (unpublished opinion) (“reject{ing] [the] argument
that Booker rendered discretionary the particular Guidelines
Manual to be utilized” and noting that “[b]ecause the district
court determined that use of the Guidelines in effect at the time
of [the post- Booker] sentencing might implicate the ex post facto
clause, it properly * * * applied the version in effect on the last
day of the offense of conviction” as opposed to the date of sen-
tencing) (internal quotation marks omitted) (emphasis added).
i9
“reach[ed] the issue whether the ex post facto clause
can apply to a post-Booker sentence” because the
case “ar[o]se[] from a pre-Booker sentencing”:
Post-Booker, the guidelines are informative,
not mandatory. A purely advisory regulation
does not present an ex post facto problem
solely because it is traceable to Congress and
will possibly disadvantage a defendant. This
principle has been recognized by the Su-
preme Court with respect to the parole guide-
lines, see, e.g., Garner, * * * and I see no rea-
son not to extend it to the present context.
Judge Posner persuasively adopted this view
in * * * Demaree[.}
Id. at 325 (Jones, J., concurring).7
The Fifth Circuit has continued to cite Judge
Jones’s concurring opinion in Rodarte-Vasquez as
evidence for the Fifth Circuit’s potential agreement
with Demaree. See United States v. Sanchez, 527
F.3d 463, 466 (5th Cir. 2008) (discussing how this
opinion “suggest[s] that, post-Booker, the sentencing
guidelines cannot present an ex post facto problem
because they are purely advisory”). See also United
States v. Boyd, 317 Fed. Appx. 415, 417 (5th Cir.
2009) (unpublished opinion) (reviewing for plain er-
ror the district court’s decision to sentence Boyd “un-
der the incorrect version of the now-advisory guide-
lines,” deciding not to reverse because the “error
[was] not obvious,” and citing Chief Judge Jones’s
concurring opinion in Rodarte- Vasquez for the propo-
sition that “[a]fter Booker, it is not clear that an ex
7 Thus, the Sixth Circuit was incorrect when, in Duane, 533
F.3d at 447 n.1, it interpreted Rodarte-Vasquez as indicating
the Fifth Circuit’s disagreement with Demaree.
20
post facto violation occurs when a district court sen-
tences a defendant under the incorrect version of the
now-advisory guidelines”), cert. denied, 2009 WL
1808271 (2009); United States v. McBirney, 261 Fed.
Appx. 741, 747 n.11 (5th Cir. 2008) (unpublished
opinion) (citing Chief Judge Jones’s concurring opi-
nion in Rodarte-Vasquez for support for its characte-
rization of the proposition that the Guidelines still
implicate the Ex Post Facto Clause as “dubious * * *
now that the guidelines are advisory, not mandato-
ry), cert. denied, 129 S. Ct. 43.
*KeEKK*
The Seventh Circuit and the D.C. Circuit have
reached holdings fundamentally at odds with each
other on the question of whether the now-advisory
Guidelines continue to implicate the Ex Post Facto
Clause. Several of the other courts of appealshave
suggested agreement with either Demaree or Turner.
In light of the clear, acknowledged conflict, and the
disagreeing views expressed by other courts of ap-
peals, certiorari is warranted now to resolve the con-
flicting views regarding the question presented.
B. The Question Presented Recurs Fre-
quently And Requires Resolution.
The question of which Guidelines Manual a sen-
tencing judge should apply—the Manual in effect at
sentencing, which results in a longer calculated sen-
tence, or the Manual in effect at the time of the de-
fendant’s offense—recurs with great frequency. We
have identified more than 55 cases in which the issue
has arisen since Booker.® Of course, this represents
8 See the cases discussed in Part A, supra, as well as United
States v. McGowan, 315 Fed. Appx. 338 (2nd Cir. 2009); United
21
States v. Boyle, 283 Fed. Appx. 825 (2d Cir. 2007), affd, 129 S.
Ct. 2237 (2009); United States v. Kilkenny, 493 F.3d 122 (2d
Cir. 2007); United States v. Ausburn, 502 F.3d 313 (3d Cir.
2007), cert. denied, 129 S. Ct. 32 (2008); United States v. Wood,
486 F.3d 781 (3d Cir. 2007), cert. denied, 128 S. Ct. 130; United
States v. Share, 223 Fed. Appx. 103 (3rd Cir. 2007); Reply Bricf
of Appellant, United States v. Knight, No. 09-4282, 2009 WL
2627151 (4th Cir. Aug. 27, 2009); Opening Brief for Appellant
Newmark, United States v. Newmark, No. 08-3356, 2009 WL
2816993 (4th Cir. July 27, 2009); United States v. Sinclair, 293
Fed. Appx. 235 (4th Cir. 2008); United States v. Iskander, 407
F.3d 232 (4th Cir. 2005); United States v. Austin, 479 F.3d 363
(5th Cir. 2007); United States v. Kilgarlin, 157 Fed. Appx. 716
(5th Cir. 2005); United States v. Reasor, 418 F.3d 466 (5th Cir.
2005); Brief of Defendant-Appellant, United States v. Jones, No.
08-2175, 2009 WL 982859 (6th Cir. Apr. 1, 2009); United States
v. Jeross, 521 F.3d 562 (6th Cir. 2008), cert. denied, 129 S. Ct.
1311 (2009); United States v. Burke, 252 Fed. Appx. 49 (6th Cir.
2007); United States v. Davis, 397 F.3d 340 (6th Cir. 2005);
United States v. Harmon, 409 F.3d 701 (6th Cir. 2005); United
States v. Lacefield, 146 Fed. Appx. 15 (6th Cir. 2005); United
States v. Braggs, 196 Fed. Appx. 442 (8th Cir. 2006); Appel-
lant’s Opening Brief, United States v. Forrester, No. 09-50029,
2009 WL 3044538 (9th Cir. Apr. 17, 2009); Defendant-
Appellant’s Opening Brief, United States v. Breton-Rodriguez,
Nos. 08-10266, 08-10400, 2009 WL 2955489 (9th Cir. Feb. 2,
2009); Appellant’s Opening Brief, United States v. Riley, No. 08-
50009, 2008 WL 4659676 (9th Cir. Sep. 9, 2008); United States
v. Mix, 457 F.3d 906 (9th Cir. 2006); United States v. Scott, 529
F.3d 1290 (10th Cir. 2008); United States v. Zirger, 257 Fed.
Appx. 59 (10th Cir. 2007); United States v. Jones, 254 Fed.
Appx. 711 (10th Cir. 2007), cert. denied, 2009 WL 1574243
(2009); United States v. Hoff, 215 Fed. Appx. 720 (10th Cir.
2007); United States v. Fowler, No. 08-16413, 2009 WL 2515735
(llth Cir. Aug. 19, 2009); United States v. Shira, 286 Fed.
Appx. 650 (11th Cir. 2008); United States v. Mathis, 239 Fed.
Appx. 513 (11th Cir. 2007), cert. denied, 128 S. Ct. 1687 (2008);
United States v. Kladek, No. 08CRO290(PJS/AJB), 2009 WL
2835158 (D. Minn. Aug. 31, 2009); Nash v. United States, Nos.
1:07-cr-00002, 1:08-cv-00620, 2009 WL 262217 (S.D. Ohio Feb.
4, 2009); United States v. Doyle, 621 F. Supp. 2d 345 (W.D. Va.
22
only a fraction of the actual number of cases in which
courts have had to address this question post-Booker,
because only a fraction of all sentencing decisions are
reported in judicial opinions and not all sentencing
decisions are appealed.
The question whether the Guidelines still impli-
cate the Ex Post Facto Clause will continue to arise
as the Sentencing Commission continues to amend
the Guidelines. Each year, the Federal Sentencing
Commission revises the Guidelines, including mod-
ifying sentences for preexisting crimes. A significant
number of these amendments represent upward re-
visions to recommended sentences. For example, at
least one-third of the Guidelines amendments (21 of
63) made since Booker upwardly revised a base of-
fense level, created a new upward enhancement, or
otherwise increased the penalty for a preexisting of-
fense. See U.S. Sentencing Commission Guidelines
Manual app. C. supp. (2008).
Amendment 723, effective November 1, 2008, for
example, added an offense characteristic that pro-
vides a four-level enhancement for violations of the
Federal Food, Drug, and Cosmetic Act, 21 U.S.C.
§§ 301 et seq. (“FDCA”). The Sentencing Commission
rationalized this enhancement by explaining that it
was based on “public comment and testimony that an
enhancement is appropriate to account for * **
second or subsequent FDCA violations.” U.S. Sen-
tencing Commission Guidelines Manual app. C.
supp. 297 (2008). Another amendment, number 691,
addresses a number of issues relevant to the primary
2009); United States v. Lewis, 603 F. Supp. 2d 874 (E.D. Va.
2009); United States v. Restrepo-Suares, 516 F. Supp. 2d 112
(D.D.C. 2007); United States v. Kandirakis, 441 F. Supp. 2d 282
(D. Mass. 2006).
23
firearms guideline, § 2K2.1 (Unlawful Receipt, Pos-
session, or Transportation of Firearms or Ammuni-
tion; Prohibited Transactions Involving Firearms or
Ammunition). The Amendment, inter alia, provides a
four-level enhancement at § 2K2.1(b)(5) if the defen-
dant engaged in the trafficking of firearms, and mod-
ifies § 2K2.1(b)(4) to increase penalties for offenses
involving altered or obliterated serial numbers. See
id. at 166-173. The other amendments cover a simi-
larly diverse set of issues.
The Sentencing Commission’s consistent pattern
of upward revisions to the Guidelines means that
courts will continue to be confronted with the ques-
tion of whether to apply newer, more severe versions
of the Guidelines over the versions in effect at the
time of defendants’ offenses. Until this Court re-
solves the question, courts will continue to answer
this question in different ways, affecting a substan-
tial number of defendants’ sentences across the coun-
try.
Indeed, statements by judges, scholars, and
commentators confirm the importance of the ques-
tion presented. See C. Clayman & H. Protass, The Ex
Post Facto Clause in the Post-Booker World, New
York Law Journal, July 1, 2009, at 4 (quoting U.S.
District Judge Lewis A. Kaplan as describing the
question of whether the Ex Post Facto Clause con-
tinues to apply to the Guidelines in the wake of
Booker as “fascinating” and “intriguing”); Douglas
Berman’s Sentencing Law and Policy Blog, at
http://sentencing.typepad.com (Dec. 5, 2008 and
April 17, 2009); J. Dillon, Doubting Demaree, 110 W.
Va. L. Rev. 1033 (2008); D. Levy, Defending Dema-
ree: The Ex Post Facto Clause’s Lack of Control Over
24
the Federal Sentencing Guidelines After Booker, 77
Fordham L. Rev. 2623 (2009).
C. The Ex Post Facto Clause Prohibits The
Retroactive Use By A District Court Of
A Version Of The Guidelines That Calcu-
lates A Harsher Sentence.
This Court’s Ex Post Facto jurisprudence has
consistently emphasized the functional effect of re-
troactive modifications to the law over purely formal
considerations. The retroactive application of meas-
ures that create a “sufficient” or “significant risk” of
increasing a defendant’s punishment triggers the Ex
Post Facto Clause. Garner, 529 U.S. at 250-251
(quoting Morales, 514 U.S. at 509). Retroactively ap-
plying the harsher 2007 Guidelines to petitioner sub-
stantially risked prolonging his punishment and
therefore violated the Ex Post Facto Clause.
1. Measures That Sufficiently Risk Prolong-
ing The Period Of Punishment Violate
The Ex Post Facto Clause.
The Ex Post Facto Clause bars the retroactive
application of measures that pose a “sufficient” or
“significant risk of prolonging” a defendant’s pu-
nishment. Jd. at 251 (quoting Morales, 514 U.S. 509).
A two-pronged inquiry is used to assess the existence
of such a risk. /d. at 251, 255. A court must first ex-
amine a measure’s effect formally, by considering its
substance and the “framework” in which it operates,
including the degree of discretion allowed in its im-
plementation. See id. at 251.
If the formal analysis fails to reveal a significant
risk, a second, practical inquiry applies: A challenger
must “demonstrate, by evidence drawn from the
rule’s practical implementation by the agency
25
charged with exercising discretion, that its retroac-
tive application will result in a longer period of in-
carceration than under the earlier rule.” Jd. at 255
(emphasis added).9
Garner applied both prongs of the analysis to a
state administrative rule that increased the interval
between parole reconsideration hearings, for prison-
ers serving life sentences, from three to eight years.
Id. at 247. The rule allowed authorities “broad dis-
cretion” to hold more frequent hearings if warranted
to determine early release. Jd. at 253. A formal eval-
uation of the rule did not reveal a sufficient risk of
prolonged punishment. /d. at 254. But applying the
empirical analysis led this Court to reverse and re-
mand because the courts below failed to consider
whether the measure “in its operation” significantly
risked increasing Garner’s punishment. Jd. at 257
(emphasis added).
That the measure at issue in Garner allowed for
discretion in its implementation did not exempt it
from Ex Post Facto scrutiny. “The presence of discre-
9 Garner is the governing and most recent articulation of this
Court’s general Ex Post Facto analysis. However, the retroac-
tive application of the Guidelines would also violate the Clause
under the analysis applied in Miller v. Florida, 482 U.S. 423
(1987), which prohibits the retroactive application of measures
that “substantially disadvantage” defendants. Jd. at 432. Here,
for example, petitioner was substantially disadvantaged, in the
sense defined by Miller, by the district court’s erroneous deter-
mination of a Guidelines range above, rather than substantially
below, the statutory minimum for the offense of conviction. See
App. 6a. As described in the text, district courts’ general adhe-
rence to the Guidelines range in the overwhelming majority of
cases means that, Booker notwithstanding, an erroneous calcu-
lation will generally lead to a different sentence. See Gall, 128
S. Ct. at 596.
26
tion does not displace the protections of the Ex Post
Facto Clause *** .” Id. at 253 (emphasis added).
Garner held that any measure—whether binding or
advisory in nature—that poses more than a “specula-
tive” risk of increasing the length of incarceration vi-
olates the Ex Post Facto Clause. Jd. at 251 (quoting
Morales, 514 U.S. at 509). “[I]t is the effect, not the
form, of the law that determines whether it is ex post
facto.” Weaver v. Graham, 450 U.S. 24, 31 (1981)
(emphasis added); see Cummings v. Missouri, 71
U.S. 277, 325 (1866); Fletcher v. Peck, 10 U.S. 87,
138-139 (1810) (Marshall, C.J.) (invalidating a
measure that had the “effect” of an ex post facto law).
2. Retroactively Applying The 2007 Guide-
lines To Petitioner Violated The Ex Post
Facto Clause.
Here, applying a harsher version of the Guide-
lines at sentencing than the one in effect at the time
of petitioner’s offense violated the Ex Post Facto
Clause under both of the standards adopted by this
Court. In declaring that the Ex Post Facto Clause
applies solely to “laws and regulations that bind ra-
ther than advise,” Demaree, 495 F.3d at 795, the Se-
venth Circuit ignored this Court’s precedents square-
ly rejecting that approach. Applying the standard set
forth by this Court reveals the extent of the Seventh
Circuit’s error.
a. Under this Court’s “formal” analysis, the
Guidelines create a significant risk of prolonged pu-
nishment when applied retroactively. Following
Booker this Court has made clear that the Guidelines
must serve as “the starting point and the initial
benchmark” in the sentencing process. Gall, 128 S.
Ct. at 596. District judges must calculate the Guide-
lines’ prescribed sentencing range and consider any
27
relevant policy statements produced by the Sentenc-
ing Commission. See 18 U.S.C. § 3553(a)(4)-(5).
“(F]ailing to calculate (or improperly calculating) the
Guidelines range,” in fact, constitutes a “significant
procedural error.” Gall, 128 S. Ct. at 597.
The particular version of the Guidelines that a
judge uses, therefore, forms the axis around which
the sentencing calculus revolves. Starting the
process by considering newer Guidelines that call for
harsher punishments inevitably pulls the determina-
tion toward a stiffer sentence.
Moreover, the presumption of reasonableness at-
tached to within-Guidelines sentences on appellate
review provides that within-Guidelines sentences
remain the default outcome. See Rita, 551 U.S. 338.
Seven circuits employ the presumption of reasona-
bleness.!° Rita acknowledged that the “presumption
[might] encourage sentencing judges to impose
Guidelines sentences,” even though district judges
cannot apply the presumption themselves. Id. at 354.
And as former Judge McConnell noted, “the rebutta-
bility of the presumption is more theoretical than
real.” United States v. Pruitt, 502 F.3d 1154, 1166
(10th Cir. 2007) (concurring opinion), judgment va-
cated, 128 S. Ct. 1869 (2008). Rita thus incentivizes
judges to render within-Guidelines sentences.
10 See United States v. Wilms, 495 F.3d 277 (6th Cir. 2007);
United States v. Dorcely, 454 F.3d 366 (D.C. Cir. 2006); United
States v. Kristl, 437 F.3d 1050 (10th Cir, 2006); United States v.
Green, 436 F.3d 449 (4th Cir. 2006); United States v. Alonzo,
435 F.3d 551 (5th Cir. 2006); United States v. Mykytiuk, 415
F.3d 606 (7th Cir. 2005); United States v. Lincoln, 413 F.3d 716
(8th Cir. 2005).
28
The continuing magnetism of the Guidelines in
the sentencing process is not surprising. Booker itself
confirmed that the Sentencing Commission would
continue “writing Guidelines” so as to “promote un-
iformity in the sentencing process.” 543 U.S. at 263-
264. But of course only Guidelines that truly “guide”
sentencing decisions can promote uniformity.
The present case exemplifies the continued very
significant impact of the Guidelines. The sentencing
judge “did not pull the [sentence of 125 months] out
of thin air.” Turner, 548 F.3d at 1100. The 2007
Guidelines prescribed a range between 121 and 151
months, and he selected a sentence on the low end.
App. 6a. Had the judge relied on the prior Guide-
lines, which called for a lower sentence by 43 to 54
months, petitioner may well have received a sentence
closer to the mandatory minimum. See App. 6a. And,
under Garner, petitioner need only show that appli-
cation of the 2007 Guidelines sufficiently risked in-
creasing his sentence, 529 U.S. at 251, not that it de-
finitively did so, Miller, 482 U.S. at 432. In sum, the
Guidelines’ continuing—and _ strong—gravitational
force ensures that applying the upwardly revised
Guidelines to petitioner created a serious risk of en-
hancing his punishment.
b. The empirical examination prescribed by the
second prong of this Court’s decision in Garner leads
to the same conclusion as the formal analysis.
To begin with, the Sentencing Commission’s sta-
tistics indicate that the post-Booker, -Kimbrough,
and -Gall Guidelines possess a magnetic pull closely
equivalent to the pre-Booker Guidelines. The Sen-
tencing Commission defines the Guidelines “confor-
mance rate” as the combined rate of within-
Guidelines and government-sponsored _ below-
29
Guidelines sentences. U.S. Sentencing Commission,
Final Report on the Impact of United States v. Book-
er on Federal Sentencing, at vi (2006).
In the 13-month period from mid-2003 through
mid-2004, the Guidelines conformance rate stood at
93.7%. Id. at 45-46. In the year following Booker, the
conformance rate remained strikingly high, at 85.9%.
Id. at 57.
The conformance rate has remained in the mid-
to low-80% range since then: It was 86.3% in fiscal
year 2006, 86.4% in fiscal year 2007, 85.0% in fiscal
year 2008, and 82.4% in the first three quarters of
fiscal year 2009. See U.S. Sentencing Commission,
Preliminary Quarterly Data Report 1 (2009); U.S.
Sentencing Commission, Final Quarterly Data Re-
port: Fiscal Year 2008, at 1 (2008); U.S. Sentencing
Commission, Final Quarterly Data Report: Fiscal
Year 2007, at 1 (2007); U.S. Sentencing Commission,
Final Quarterly Data Report: Fiscal Year 2006, at 1
(2006). Figures 1 and 2 depict these statistics graphi-
cally. The top line in Figure 1 displays the Guide-
lines conformance rate for fiscal year 2001 through
the immediate post-Booker period. The top line in
Figure 2 displays the Guidelines conformance rate
for fiscal year 2004 through the first three quarters
of fiscal year 2009.
30
Figure 1: Quarterly Sentencing Data
FY2001 — Post-Booker'!
100 Percent of Cases
Within. Kange/Government epemeree
4 — oe
—_———o-—f
80 4 ‘
w | caren
“a Bhabety
PROTECT Act
rR Cee re, Trt Celie) (ferris
Pp) Peeper Clr icr it emer Cite erect eeer ree et Tier eri irre Cree ert er eee eres (OTT eTrerer ir iiire (fi Teter eee
Below-Range
ee ee ee eee a
Abuve-Hunge po
0 ee ~. —! 2: = =2: sr ——— a . —.-« os
FY2001 Fy2003 Fv2003 Fv1004 Pest
Booker
Figure 2: Quarterly Sentencing Data
FY2004 - First Three Quarters of FY2009'2
100 a . ‘ ——
e-* = ‘"
p—2-— 029 9 9 200 Og
OO + - ann en wees See ee eee RR ie pee CREE so,
] Within Raoge/Covernment Spaosared
eee ree ee
: 4 Beakrty ower:
—— eee re
~ Seen TRRRIESs AES UE Sere 20 12- o) SeCa T
a] Ege === 6 = t= 9-8-9 |
™~, © ™®% % ~~ %®
'! Reprinted from U.S. Sentencing Commission, Final Report on
the Impact of United States v. Booker on Federal Sentencing 56
(2006).
12 Reprinted from U.S. Sentencing Commission, Preliminary
Quarterly Data Report 11 (2009).
31
Statistics also confirm the hypothesis articulated
by this Court in Rita—that the presumption of rea-
sonabieness for within-Guidelines sentences on ap-
pellate review might “encourage sentencing judges to
impose Guidelines sentences.” Rita, 551 U.S. at 354.
An extensive, multivariate study released in 2007
found that “a circuit’s adoption of a presumption of
reasonableness decreases the frequency of below-
Guidelines” sentencing decisions issued by district
judges. A. Robbins & L. Lao, The Effect of Presump-
tions: An Empirical Examination of Inter-Circuit
Sentencing Disparities after United States v. Booker
25 (Nov. 4, 2007) (unpublished manuscript), availa-
ble at http://tinyurl.com/EffectofPresumptions. A\l-
though the decrease was less than one percent, it
was statistically significant, demonstrating the clear
pull of the presumption. Jbid. The study drew upon a
reservoir of “145,047 individual-level observations
recorded by the United States Sentencing Commis-
sion (comprising all recorded federal sentences in all
twelve circuits for a one-year period beginning in
November 2004 and ending in October 2006).” Id. at
| ¥
Similarly, a study by the New York Council of
Defense Lawyers analyzing 1,515 circuit cases de-
cided between January 1, 2006 and November 16,
2006 revealed that circuits adopting the presumption
of reasonableness reverse below-Guidelines sen-
tences at a far greater rate than circuits not employ-
ing the presumption. See Brief for New York Council
of Defense Lawyers as Amicus Curiae Supporting
Petitioner App. at la-3a, Rita, 551 U.S. 338 (No. 06-
5754). available at http://tinyurl.com/NYCDLAmicus.
Circuits adopting the presumption vacated below-
Guidelines sentences in 47 out of 51 cases, a rate of
92%. Id. at 3a. Circuits not adopting the presump-
32
tion, in contrast, vacated below-Guidelines sentences
in thirteen of twenty cases, a rate of only 65%. Ibid.
These statistics confirm the Guidelines’ continu-
ing guiding force, even following Booker and its prog-
eny. Operating within a formalized framework that
requires sentencing judges to consult them and in-
centivizes judges to hew closely to them, the Guide-
lines continue to unify sentencing decisionmaking.
Even now, almost five years after Booker, more than
80% of sentences conform to the Guidelines.
The Guidelines, therefore, are not purely horta-
tory devices that fail to exert sway over the sentenc-
ing process. Instead, the Guidelines remain the criti-
cal component of sentencing decisions, drawing dis-
trict courts and circuits—particularly those recogniz-
ing the presumption of reasonableness—to issue
within-Guidelines sentences.
In an environment in which courts ordinarily ap-
ply the governing Guidelines, the question of which
Guidelines a court applies matters immensely. Re-
troactively applying harsher Guidelines naturally
creates a substantial risk of increasing a defendant’s
punishment. In this case, applying the newer and
harsher 2007 Guidelines to petitioner violated the Ex
Post Facto Clause.
Only review by this Court can resolve the conflict
below and restore the protections secured by the Ex
Post Facto Clause to the sentencing process.
CONCLUSION
The petition for a writ of certiorari should be
granted.
33
Respectfully submitted.
DAN M. KAHAN ANDREW J. PINCUS
ScoTT L. SHUCHART Counsel of Record
Yale Law School CHARLES A. ROTHFELD
Supreme Court Clinic Mayer Brown LLP
127 Wall Street 1999 K Street, NW
New Haven, CT 06511 Washington, DC 20006
(203) 432-4800 (202) 263-3000
P. JEFFREY SCHLESINGER
8396 Mississippi Street,
Suite G
Merrillville, IN 46410
(219) 736-5555
Counsel for Petitioner
OCTOBER 2009
APPENDICES
la
APPENDIX A
IN THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT
No. 08-1204
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
Vv.
MATTHEW HENSLEY,
Defendant-Appellant.
Appeal] from the United States District Court for
the Northern District of Indiana, Hammond Divi-
sion. No. 2:06 CR 168 — Philip P. Simon, Judge.
ARGUED APRIL 9, 2009 — DECIDED JULY 23,
2009
Before MANION, ROVNER, and WOOD, Circuit
Judges.
MANION, Circuit Judge. Government agents
created a fictitious online personality named “Jenni-
fer Sanchez,” who represented herself as a 13-year-
old girl. Matthew Hensley, using multiple online per-
sonas, attempted to cajole Jennifer into having sex
with him. A meeting place was arranged. However,
while en route, Hensley noticed law enforcement
near the meeting place and left the scene. Officers
arrested Hensley the next day. A jury convicted him
of attempting to solicit a minor for sex in violation of
2a
18 U.S.C. § 2422(b). The district court sentenced him
to 125 months’ imprisonment. Hensley appeals both
his conviction and sentence. We affirm.
I.
The sting that caught Matthew Hensley was part
of a wider law-enforcement effort targeting Internet
sexual predators. The operation used personnel from
several state and federal agencies, including the
Immigration and Customs Enforcement (“ICE”) and
the Secret Service. The plan was to first entice sex-
ual predators over the Internet using agents passing
themselves off as minors, and then to nab them when
they arrived at Will Park in Valparaiso, the spot
where the fictitious minors would tell the perpetra-
tors to meet them for the trysts. The takedowns—
approximately ten to twelve of them—were all sche-
duled to occur on the same day, August 18, 2006, and
involved well over 100 law enforcement officers.
ICE agents Demetrius Flowers and Melissa
Chan participated in the operation. They posed as a
thirteen-year-old girl named “Jennifer Sanchez” and
created an online Yahoo profile for her with the
screen name jen_indy_13 (hereinafter “Jen”). Begin-
ning August 7, 2006, Agent Flowers, under the guise
of that screen name, visited the Indiana section of
several Yahoo chat rooms.
That same day, Hensley, using the screen name
MattyMac99, struck up a one-on-one conversation
with Jen in one of the chat rooms. Both parties re-
vealed their age, sex, and location. Upon discovering
that Jen was thirteen years old, Hensley responded,
“oh what the hell i’d still fuck you.” Later, Hensley,
informing Jen that he had sex on his mind, at-
tempted to find out where she lived and what hours
3a
her mom worked. He also asked her what was the
most she had ever done with a guy before, when she
might want to have sex, if she would let him kiss her,
what her number was, and when they could meet.
While Hensley was talking to Jen as Matty-
Mac99, he also was conducting two other one-on-one
conversations with her using the screen names Ma-
verickMatt4 and Mark Thompson24. With each
screen name, Hensley was pretending to be a differ-
ent person. At the time, the government did not
know that all three screen names were the same per-
son. As MaverickMatt4, Hensley pretended to be a
19-year-old male living an hour north of Indianapo-
lis. He again requested that Jen give her age—she
reaffirmed that she was thirteen—and then asked
her pointed questions about her sex life, including
whether a guy had ever “fe[it] you up” and if she had
ever masturbated.
As Mark_Thompson24, Hensley pretended to be
a 21-year-old male living in downtown Indianapolis.
Hensley told Jen he was “horny” and wanted “to get
to know [her] with [her] clothes off.” He also asked
her if she would come hang out with him and “help
[him] out” by performing various sex acts with him.
Hensley later asked Jen for her bra size and fanta-
sized about having sex with her.
Hensley continued conversing with Jen the next
day. Using the screen name NIPSCO26, he posed as
a fifteen-year-old girl and questioned Jen repeatedly
about her age to make sure she was thirteen and not
just “do[ing] some trapping work.” He also used the
screen name Mark _Thompson24 to encourage her
further to have sex with him, going so far as to offer
to pick her up that night. When Jen expressed fear
about getting pregnant, Hensley told her that she
4a
would not get “preggers” if they had sex after her pe-
riod or engaged in coitus interruptus.
The next evening, using the screen name Mat-
tyMac99, Hensley was at it again. He engaged Jen in
another highly sexualized conversation and at-
tempted to arrange a meeting with her. During their
next conversation, Hensley continued to push for a
meeting with Jen. He talked about the possibility of
her becoming his girlfriend and attempted to devise
a plan for her to meet him at Valparaiso University.
Although the meeting at Valparaiso University
did not happen, Hensley kept pressing Jen to meet
him. He also continued to groom Jen for a sexual en-
counter. On one occasion, Hensley, using the screen
name NIPSCO26, contacted Jen and—again pretend-
ing to be a fifteen-year-old girl—told Jen how “she”
loved having sex with older men because they were
more experienced than younger guys. He also told
Jen that thirteen was old enough to have sex and
appealed to the lack of concern by “her” dad, a doctor,
in order to show Jen that her fears of pregnancy and
sexually transmitted diseases were overblown.
After a phone conversation on August 18, Hens-
ley agreed to meet Jen near her house around 3:00
p.m. later that day. As the time for the rendezvous
approached, a uniformed police officer stationed near
the designated meeting place observed Hensley drive
past his parked squad car. Hensley did not stop, and
the officer made no attempt to arrest him. During a
chat session that night, Jen asked Hensley why he
had not stopped by that day. Hensley replied that
there were cops everywhere, that he could be ar-
rested for coming to see her, that she was too young
for him, and that a guy his age hanging out with a
girl her age would not look good.
5a
Agents arrested Hensley at his home the next
day. They also executed a search warrant, seizing a
computer from Hensley’s living area in the home’s
basement. Upon examining that computer, forensic
experts discovered that the screen names Hensley
used to contact Jen originated from it. They also
found that someone had attempted to delete those
screen names from the computer.
Hensley was charged in a one-count indictment
with attempting to solicit a minor for sex in violation
of 18 U.S.C. § 2422(b). At trial, the government in-
troduced evidence of Hensley’s prior online relation-
ship with T.G., a minor from California. Prior to
T.G.’s testimony, the district court gave the following
instruction:
The testimony that you’re about to hear from
this witness ... will be evidence of acts that
the Defendant may have committed other
than those that are charged in the indict-
ment. You should consider this evidence only
on the issue of the Defendant’s intent, and
you should consider this evidence only for
this limited purpose and for no other pur-
pose.
T.G. testified that she first met Hensley in an In-
ternet chatroom when she was 12. After she con-
versed with him for awhile, Hensley moved to sexual
topics, such as the first time T.G. “got sexual” and if
she knew how to masturbate. Although T.G. initially
told Hensley she was 14, she later divulged her true
age on her thirteenth birthday. Despite knowing her
real age, Hensley continued to talk with T.G. about
sexual subjects. Later, after exchanging phone num-
bers, they began engaging in phone sex. T.G. also
testified that, although Hensley never came to visit
6a
her, he had told her he was going to make prepara-
tions to fly out to see her.
The jury convicted Hensley, and the court pro-
ceeded to sentencing. Under the guidelines manual
effective November 2006, Hensley’s base offense level
was 24. See U.S.S.G. § 2G1.3(a) (Nov.2006). AI-
though Hensley’s sentencing hearing was originally
scheduled for October 2007—when the November
2006 guidelines manual was in effect—it was post-
poned until January 2008 at the request of the gov-
ernment. At the January 2008 hearing, the district
court calculated the advisory guidelines using the
guidelines manual effective November 2007. That
version contained Amendment 701, which raised
Hensley’s offense level under U.S.S.G. § 2G1.3 from
24 to 28, thereby increasing his sentencing range (af-
ter two two-level enhancements) from 78-97 months
to 121-151 months. See U.S.S.G. § 2G1.3(a)(3)
(Nov.2007). The mandatory minimum sentence un-
der 18 U.S.C. § 2422(b) was 120 months’ imprison-
ment, and the district court sentenced Hensley to
125 months’ imprisonment. Hensley appeals his con-
viction and sentence.
Il.
On appeal, Hensley first argues that the district
court erred in admitting evidence of Hensley’s online
relationship with T.G. We review the evidentiary de-
cisions of the district court for an abuse of discretion.
United States v. Prieto, 549 F.3d 513, 523 (7th
Cir.2008). Rule 404(b) of the Federal Rules of Evi-
dence provides that “le]vidence of other crimes,
wrongs, or acts is not admissible to prove the charac-
ter of a person in order to show action in conformity
therewith.” Such evidence is admissible, however,
where offered for a purpose other than showing pro-
7a
pensity, such as to establish intent, knowledge, lack
of mistake, motive, or opportunity. Fed.R.Evid.
404(b); United States v. Vargas, 552 F.3d 550, 554
(7th Cir.2008). According to this court’s four-part
test, a district court determining the admissibility of
“other acts” evidence under Rule 404(b) as well as
Rules 402! and 4032 must consider whether:
(1) the evidence is directed toward establish-
ing a matter in issue other than the defen-
dant’s propensity to commit the crime
charged; (2) the evidence shows that the oth-
er act is similar enough and close enough in
time to be relevant to the matter in issue; (3)
the evidence is sufficient to support a jury
finding that the defendant committed the
similar act; and (4) the evidence has proba-
tive value that is not substantially out-
weighed by the danger of unfair prejudice.
United States v. Diekhoff, 535 F.3d 611, 617 (7th
Cir.2008) (quoting United States v. Simpson, 479
F.3d 492, 498 (7th Cir.2007)).
Hensley concedes that the government estab-
lished the second and third elements of the four-part
test—the similarity and temporal proximity of Hens-
ley’s relationship with T.G. and the evidence suffi-
cient to establish it. Those concessions are signifi-
1 Federal Rule of Evidence 402 provides that “[a]ll relevant evi-
dence is admissible” and “[e]vidence which is not relevant is not
admissible.”
2 Federal Rule of Evidence 403 states that relevant evidence
nevertheless “may be excluded if its probative value is substan-
tially outweighed by the danger of unfair prejudice.”
8a
cant, as the other two elements are easily met.’ Re-
garding the first, the district court found that the
evidence was relevant to show both Hensley’s intent
and knowledge, and we agree. From the very outset
of the trial, Hensley put his intent to solicit sex from
a minor and his knowledge that Jen was a minor at
issue. During opening argument, Hensley’s attorney
argued that he “had every reason to believe the per-
son at the other end of this computer was not 13
years of age.”4 Throughout the trial, Hensley contin-
ued to advance his argument that he did not believe
Jen was underage. While cross-examining the gov-
ernment’s witnesses, Hensley’s attorney attempted
to leave the jury with the impression that he would
3 Notwithstanding his concession of similarity, Hensley argues
that the acts are unrelated. This is so, says Hensley, because 18
U.S.C. § 2422(b) incorporates state law (“Whoever, using ... any
facility or means of interstate ... commerce ... knowingly per-
suades [a minor] to engage in ... any sexual activity for which
any person can be charged with a criminal offense”), and the
state-law offenses underlying the charged § 2422(b) offense and
what could have been charged under § 2422(b) for Hensley’s on-
line relationship with T.G. are not the same. According to Hens-
ley, the conduct at issue at trial is punishable as child solicita-
tion, Ind.Code § 35-42-4-6, whereas his online involvement with
T.G. only would have amounted to vicarious sexual gratifica-
tion, Ind.Code § 35-42-4-5.
* Hensley’s attorney came perilously close to opening the door to
the T.G. evidence under Fed.R.Evid. 404(a)(1) when he ap-
peared to advance an entrapment defense, claiming during
opening statements that “Hensley ha[d] no history as a preda-
tor of any kind whatsoever” and asking government witnesses
questions about Hensley’s predisposition to commit the offense.
However, Hensley wisely withdrew reliance on that defense lat-
er during trial, and the government does not advance any ar-
gument for the admissibility of the T.G. evidence under Rule
404(a)(1).
9a
not have interacted with Jen had he really believed
she was 13. And, at closing, he similarly contended
that Hensley had “every reason to believe” that Jen
was 18. The evidence about T.G., of course, was high-
ly relevant to showing the opposite; it demonstrated
that Hensley had no qualms about pursuing a sexual
relationship with a person he knew was a minor.
Even assuming Hensley had not conceded simi-
larity (he did), we would nevertheless reject that ar-
gument. Our case law does not require such a narrow
rendering of similarity. See Vargas, 552 F.3d at 555
(“We have repeatedly held in the context of Rule
404(b) that similarity is relevant only insofar as the
acts are sufficiently alike to support an inference of
criminal intent.... The prior acts need not be dupli-
cates of the one for which the defendant is now being
tried. This test is not unduly rigid, and the term ‘si-
milarity’ has been loosely interpreted and applied.”
(internal citation and quotations omitted) (alteration
in original)). The relevant similarity here is, as
Hensley himself acknowledges in his brief, that in
both instances he was attempting to persuade a mi-
nor to engage in sexual activity.
The relevance of the T.G. evidence to rebut Hens-
ley’s defense of lack of knowledge also strongly sup-
ports weighing the fourth factor, the balancing of the
probative value with unfair prejudice, in favor of
admissibility. While the evidence was prejudicial, it
was not unfairly so. Furthermore, the district court’s
limiting instruction, given prior to T.G.’s testimony,
provided a bulwark against any unfair prejudice. See
United States v. Hearn, 534 F.3d 706, 713 (7th
Cir.2008) (noting that “such limiting instructions are
effective in reducing or eliminating any possible un-
fair prejudice from the introduction of Rule 404(b)
10a
evidence”) (internal quotation marks omitted). We
therefore see no abuse of discretion in the district
court’s decision to admit the evidence of Hensley’s
prior relationship with T.G.
Moreover, even without the evidence concerning
Hensley’s relationship with T.G., a reasonable jury
easily could have found that Hensley was guilty of
attempting to persuade Jen to engage in sexual ac-
tivity with him in violation of § 2422(b). See Vargas,
552 F.3d at 558. The government presented evidence
that Hensley had numerous online and phone con-
versations with Jen—during which Jen made it crys-
tal clear that she was underage—about meeting for
sex. It also presented evidence that Hensley ar-
ranged a meeting place and time and traveled to the
meeting place; that Hensley left the area after seeing
law enforcement officers nearby and attempted to
destroy the evidence on his computer of his chats
with Jen; and that Hensley, in his final online con-
versation with Jen, admitted that he could be ar-
rested for coming to see her, that she was too young
for him, and that he did not stop to see her because
there were “cops everywhere.” Thus, had any unfair
prejudice resulted from the evidence of Hensley’s re-
lationship with T.G., it would not merit reversal be-
cause the other evidence of Hensley’s guilt was over-
whelming. See Fed.R.Crim.P. 52(a).
Hensley next contends that the government
failed to present sufficient evidence to show that he
took a “substantial step” towards the completion of
the § 2422(b) offense, as is necessary for an attempt
conviction. United States v. Coté, 504 F.3d 682, 687
(7th Cir.2007). Ordinarily, our review of a challenge
to the sufficiency of the evidence is quite deferential,
looking only at whether “evidence exists from which
lla
any rational trier of fact could have found the essen-
tial elements of the crime beyond a reasonable
doubt.” United States v. Hach, 162 F.3d 937, 942 (7th
Cir.1998). That standard, by itself, presents “a near-
ly insurmountable hurdle to the defendant.” Jd.
(quoting United States v. Teague, 956 F.2d 1427,
1433 (7th Cir.1992)). Hensley’s trouble is com-
pounded, however, because he did not raise this issue
in his motion for judgment of acquittal in the district
court. Hence, under the plain error standard, he fac-
es the even more difficult task of showing that a
“manifest miscarriage of justice will occur if his con-
viction is not reversed.” United States v. Irby, 558
F.3d 651, 653 (7th Cir.2009). “Put another way, re-
versal is warranted only if the record is devoid of
evidence pointing to guilt, or if the evidence on a key
element was so tenuous that a conviction would be
shocking.” Jd. (internal quotations omitted).
Hensley falls far short of meeting that standard.
He relies almost exclusively on United States v. Gla-
dish, 536 F.3d 646 (7th Cir.2008). In that case, this
court held that sex talk alone does not amount to a
“substantial step.” 536 F.3d at 650. But there is
much more than mere talk here. Not only did Hens-
ley “groom” Jen for sex by conversing with her using
multiple online personas, see United States v. Zawa-
da, 552 F.3d 531, 535 (7th Cir.2008); United States v.
Brand, 467 F.3d 179, 203 (2d Cir.2006), and arrange
a meeting place and time to meet her, Gladish, 536
F.3d at 649 (citing cases), he actually traveled to the
meeting place, being deterred from the encounter on-
ly by the presence of law enforcement. As we stated
in Gladish, that is more than enough for a jury to
find a “substantial step.” See id.
12a
Hensley makes much of his last phone call to Jen
before he traveled to meet her, during which he told
her he was not sure sex was a good idea and asked if
it was alright if they just hung out together. Hensley
claims this shows he did not intend to meet her for
sex. However, a jury was entitled from the evidence
to conclude that Hensley’s intent was otherwise—-
that he wanted sex, and not just to “hang out.” Even
a cursory reading of the transcripts of the conversa-
tions between Hensley and Jen reveals that Hensley
had sex on his mind and was interested in much
more than a platonic relationship with Jen. Indeed,
Hensley went so far as to use one of his multiple per-
sonas (as a 15-year-old girl) to test Jen in order to
make sure she was not a government agent. That
Hensley took such precautions strongly suggests a
desire for sex rather than simple friendship. Fur-
thermore, the jury heard other evidence showing
Hensley’s consciousness of guilt: Hensley’s atteinpted
destruction of the incriminating chat profiles after he
noticed police near the prearranged meeting place, as
well as Hensley’s last conversation with Jen wherein
he told her there “were cops everywhere” and he
could be arrested for coming to see her. From that
evidence, a reasonable jury could find that Hensley
intended to have sex with Jen when he went to meet
her. Thus, Hensley has failed to show that upholding
his conviction will result in a manifest miscarriage of
justice.
Lastly, Hensley challenges the district court’s
calculation of his advisory guidelines range using the
November 2007 guidelines manual, instead of the
November 2006 version. We have previously rejected
such a challenge in United States v. Demaree, 459
F.3d 791 (7th Cir.2006), wherein we held that a dis-
trict court can apply a change in the Guidelines that
13a
expands a defendant’s advisory guidelines range
without offending the Ex Post Facto Clause. Hensley
acknowledges Demaree but argues that an exception
should be made to its rule in this case. Such an ex-
ception is warranted, Hensley contends, because here
the government, and not Hensley, asked for the con-
tinuance of the sentencing hearing that led to the
application of the more stringent advisory guidelines.
We fail to see how that fact is significant. As we
remarked in Demaree,
A judge who said he was persuaded by the
insight that informed the new guideline to
give a sentence within the range established
by it could not be thought to be acting unrea-
sonably.... [W]henever a law or regulation is
advisory, the judge can always say not that
he based his sentence on it but that he took
the advice implicit in it. A judge is certainly
entitled to take advice from the Sentencing
Commission.
Id. at 795. The same holds true here. Regardless of
who sought the continuance,® the district judge was
entitled to take into account the change in the Guide-
lines when fashioning a sentence. No error was
committed therefore in the calculation of Hensley’s
advisory guidelines range. Because Hensley makes
no further challenge to his sentence, we will not dis-
turb it.
5’ Hensley does not argue that the government intentionally de-
layed the sentencing so the amendment would take effect.
There is no reason for the government to do such a thing, since
under the logic of Demaree, the government can bring guideline
changes to the attention of the district court before they take ef-
fect. See id.
l4a
Il.
The district court did not abuse its discretion in
admitting evidence of Hensley’s prior relationship
with T.G. as probative of Hensley’s knowledge that
Jen was a minor and his intent to solicit sex from
her. The court’s limiting instruction adequately pre-
vented any unfair prejudice stemming from that de-
cision and, at any rate, the other evidence against
Hensley was overwhelming and more than sufficient
to support the jury’s finding that Hensley attempted
to solicit a minor for sex in violation of 18 U.S.C.
§ 2422(b). Hensley’s final argument—that the dis-
trict court erred in calculating his advisory guide-
lines range because it used the November 2007
guidelines manual instead of the guidelines manual
effective November 2006—is foreclosed by our deci-
sion in Demaree. We therefore AFFIRM Hensley’s
conviction and sentence.
15a
APPENDIX B
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
UNITED STATES OF AMERICA,
Government,
Cause:
2:06 CR
MATTHEW HENSLEY, 168
)
)
)
)
vs. )
)
)
)
)
Defendant.
The SENTENCING in the above-entitled mat-
ter was commenced before Honorable Philip P. Si-
mon|,] judge of said court, at the Federal Building,
5400 Federal] Plaza, Hammond, Indiana, on the 11th
of January, 2008 commencing at the hour of 1:05 in
the afternoon.
[Excerpt: page 5, line 1: page 12, line 23]
THE CLERK: All rise.
THE COURT: You can be seated. All right. Good
afternoon every one. We’re on the record. The cause
number is 2:06 CR 168 United States versus Mat-
thew Hensley.
And we're here today for the sentencing of Mr.
Hensley who’s present in person with his lawyer
Alex Woloshansky. The Government is represented
by Phil Benson, its Assistant United States Attorney.
16a
Back on the 13th day of July of 2007, the jury re-
turned a verdict finding the Defendant guilty on—in
the indictment in this case. And then on the 17th day
of October of 2007, I received a written presentence
report along with addendum from the Probation De-
partment.
And then subsequent to that, I received two addi-
tional addenda, one—well, I received two others.
There was a second addendum, and then a third ad-
dendum. And I’ve reviewed bcth of those in advance
of the hearing today.
I also just reference for the record that I received
a number of letters on behalf of the Defendant that I
have fully read and considered in advance of the
hearing today. 1 received a letter from Mr. Hensley,
meaning his father, Mr. Hensley.
I also received a letter from the defendant’s mom,
Cathy Hensley. I received a letter from the head
basketball coach at Valparaiso University, Dr. Hom-
er Drew, a letter from a Kenneth Markfull.
I also received a letter from a James Brickman, a
letter from Father Kevin McCarthy from Saint The-
resa of the Ville. I received a letter from a Lila Jar-
vis.
And so, I’ve reviewed all of those letters in ad-
vance of hearing today.
All right. Mr. Woloshansky, did both you and
your client receive a copy of the presentence report
and those addenda some time before the hearing to-
day?
MR. WOLOSHANSKY: We did, your honor.
17a
THE COURT: Mr. Hensley, did you have a
chance to review the presentence report and go over
its contents with Mr. Woloshansky?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Mr. Benson, did the Government
receive and review the presentence report and the
addendum prepared by the probation officer.
MR. BENSON: We have, your Honor.
THE COURT: All right. The presentence report
and the addenda are now placed in the record under
seal. It is directed if an appeal is taken, counsel on
appeal shall be permitted access to thesealed report.
It’s further directed that counsel on appeal shall]
not be permitted access to the recommendation of
that report.
Now, the addenda to the presentence report indi-
cates that there are no factual or legal issues in dis-
pute, and there is no dispute as to the appropriate of-
fense level and criminal history category under the
advisory Sentencing Guidelines.
Is that true, Mr. Woloshansky?
MR. WOLOSHANSKY: Well, only as to which set
of guidelines you use. 2006 versus 2007, Your Honor.
That’s the only dispute we have here.
THE COURT: Okay. Has that been raised in an
addendum?
I mean, have you filed an objection arguing that
one set of guidelines should be used over the other?
MR.WOLOSHANSKY: Yes.
This sentencing date was originally set for Octo-
ber the 31, two—
18a
THE COURT: Right. The day before the guide-
lines changed.
MR.WOLOSHANSKY: Exactly.
THE COURT: Why did it get changed?
MR. WOLOSHANSKY: Why did it get changed.
THE COURT: I was trying to remember, why did
it get changed? I was surprised it got changed.
MR. WOLOSHANSKY: There was a—there is a
report in the file, the third addendum to your presen-
tence report indicating that Mr. Benson wanted to
check to see the supervised release, whether it was
mandatory to be life or discretionary.
THE COURT: That was that issue about whether
or not what you just said, the supervised release is
from five to life. I suppose.
MR. BENSON: Yes.
THE COURT: There is some indication in the
guidelines it might be mandatory life, but it seems
that is actually discretionary.
MR. BENSON: The report originally read—lI
didn’t catch it until the last minute. I apologize. Su-
pervised release term was three to five. Upon further
reviewing, consulting with one of my colleagues, out-
side of our office, they pointed out that five is the
minimum and life is the maximum that’s under the
guidelines, certainly not statutory.
Five years is statutory minimum.
THE COURT: Now, the point I think that Mr.
Woloshansky is raising, but for that, the sentencing
would have gone down on the 3lst of October, the
day before the change of the guidelines, which now
19a
exposes Mr. Hensley from something below the man-
datory minimum to 121 to 151.
BENSON: Uh-huh.
COURT: So, what’s the Government’s position on
that issue?
MR. BENSON: Given the Supreme Court’s re-
cent holding about what import the guidelines
should be given, I don’t think it makes any differ-
ence, judge. This Court would considerthe guidelines
in the same as any other factor it would have. It
could have—it could have given the minimum of 121
months before it was continued.
There certainly is no ex post facto. That is what
counsel specifically raised, because they are advi-
sory. But I think given the latitude the Court has, I
don’t think it makes any difference when it changed
to be honest with you.
THE COURT: Okay. Mr. Woloshansky.
MR. WOLOSHANSKY: My position is, Your
Honor, the actual numbers are under the 2006 guide-
lines, his score of 28 would give him 78 to 97 months.
Under the 2007 guidelines which would have
taken [e]ffect the following day after our originally
scheduled sentencing, the guidelines called for 121 to
151 months. By my rough calculations, that is a 50
percent increase in a recommended guideline sen-
tence.
So, I’m asking the Court to utilize your discre-
tion, to acknowledge that Defendant had nothing to
do with rescheduling the sentencing date after Octo-
ber the 31, the date you first said to use the ‘06
guidelines.
20a
THE COURT: Okay. I understand the point.
Mr. Benson, do you have any response to that?
MR. BENSON: No, just that it was continued—I
guess, could I say at the Government’s request but
because the probation report, it was—it would have
misinformed the Court, and I have an obligation to
make sure the Court is properly informed.
THE COURT: I’m not casting blame. I don’t
think counsel is casting blame here.
I think the point he is making is it makes some
sense. If the guidelines on October 31 were 78
months to 95 months, a sentence of 100 and say, 25
months, would have been perhaps viewed as much
more unreasonable than if the range was 121 to 151
and it was squarely within the range.
Do you follow the point?
MR. BENSON: Yes, but that would direct the
Court back to whatever value the guidelines have
that they are to use the guidelines in effect at sen-
tencing.
And it wasn’t continued for the Government to
get some more evidence.
lt was—it was because the Court was notified
that there was a mistake in the presentence report.
THE COURT: I understand. Okay.
All right. ’'m going to apply the guidelines that
are in effect on today’s date because that’s what the
Supreme Court directs me to do. And I understand
the point that you’re making, but I do believe that
what the Supreme Court and what the Seventh Cir-
cuit has directed more recently is that I am to apply
2la
the guidelines that are in effect on the day of the
sentencing.
So, I’m going to make the following guideline
findings. There is a total offense level in this case of
32. And that’s derived at as follows. There is an ini-
tial offense level of 28. Two points—that’s pursuant
to 2G1.3A3.
Two points were added because there was a mi-
nor—solicitation of a minor or an attempted solicita-
tion of a minor pursuant to 2G1.3B3.
Two additional points were added pursuant to
2G1.3B4 for a total offense level of 32. There is a
criminal history category of one, which leads to a
range of potential imprisonment of 121 to 151
months under the guidelines.
The fine range [is] from 17,500 to 175,000.
Supervised release range is five years to life.
There is a $100 special assessment. And restitu-
tion is not an issue in this case.
All right. Without—understanding your argu-
ment, Mr. Woloshansky, and accepting I’m overrul-
ing your objection, so, without repeating any pre-
viously expressed objections, are those calculations
correct?
MR.WOLOSHANSKY: Yes.
THE COURT: Mr. Benson.
MR. BENSON: Yes, Your Honor.
THE COURT. Can you tell me where you lodged
this objection to, because I don’t have it.
I don’t like being surprised like this.
22a
MR. WOLOSHANSKY: I had a letter dated No-
vember the 12, 2007 to Janice Lawton.
THE COURT: Can I see that letter please.
MR. WOLOSHANSKY: Sure. May I approach.
THE COURT: Sure.
MR. WOLOSHANSKY: Actually, the case law I
cited probably wasn’t in effect, but I was urging her
to consider the 2006, the earlier guidelines based on
Geo (phonetic). But Geo was only of import back
when the guidelines were mandatory.
And the old law says if the new guidelines call
for a greater penalty, you use the lower—the earlier
guidelines if they are less harmful to the client.
THE COURT: That’s—
MR. WOLOSHANSKY: So, but the point is, even
under the old guidelines, they recognize there is
some sort of remedy for an increased penalty based
on using later guidelines at sentencing other than
those who were in effect at the time of the incident
because—and because they are mandatory.
Now, they are no longer mandatory, you’ve got
discretion I think to go down wherever you want to.
And that Geo case is »o longer controlling, but
that is my objection to probation about using the
newer guidelines.
THE COURT: All right. ’'m going to take a five
minute recess here. Janice, can I talk to you for a
second.
THE PROBATION OFFICER: Sure.
(Short recess.)
kx weer
23a
[Excerpt: page 13, lines 3-9]
THE COURT: All right. One second.
All right. The court adopts the factual state-
ments that are contained in the presentence report
as to which there are—are no objections as my find-
ings of fact for purposes of this sentencing. And I
made my finding on what the applicable advisory-
guidelines are. * * *
[Excerpt: page 48, line 13: page 56, line 20]
THE COURT: All right. Thank you.
The Supreme Court in its decision of United
States versus Booker and United States versus Rita
modified the Federal Sentencing Act and made the
guidelines advisory.
Prior to Booker, the guidelines were mandatory.
Judges like myself had to follow the guidelines, but
Booker has essentially demoted the guidelines from
mandatory status to advisory status.
What that means is that they serve as a source of
advi[cle to Federal judges.
I certainly have to take the guidelines into ac-
count in rendering a reasonable and appropriate sen-
tence, but I’m also now permitted and also required
to consider the factors under 18 USC [3553(a)] in ar-
riving at a reasonable sentence.
As the Seventh Circuit stated in United States
versus Saxonmayer, 91 Federal 3d, 680, Courts must
derive whatever insight the guidelines have to offer,
but ultimately the sentencing must be arrived at
without a thumb on the scale in favor of a guideline
sentence.
24a
What that means is that the guidelines now are
one factor in conjunction with a whole host of other
factors in [3553(a)] that the Court should take into
consideration in arriving at a sentence, but there is
no presumption that the guidelines are, in fact, rea-
sonable.
Now, by contrast, if I were to give a guideline
sentence in this case, on appeal there is a presump-
tion of reasonableness in the appellate Court, but
that presumption does not apply in the District
Court.
So the factors that I have to take into considera-
tion are the nature and circumstances of the offense
and the history and characteristics of the Defendant.
The need for the sentence imposed to reflect the
seriousness of the offense, promote respect for the
law, provide just punishment for the offense.
I have to afford adequate deterrence to this type
of criminal activity, protect the public from further
crimes of the Defendant, provide the Defendant with
needed educational, vocational training in the most
effective manner.
I have to take into account, of course, the guide-
lines themselves and the policy statements in the
guidelines, with the overarching goal here of avoid-
ing any unwarranted sentencing disparity among
similarly situated defendants, and also arriving at a
sentence that is sufficient but not greater than ne-
cessary to achieve these goals.
And so, those are the standards that guide me in
arriving at a sentence.
I do think that a guideline sentence in this case
is altogether appropriate.
25a
And I have calculated the guidelines to be 121
months to 151 months given the guidelines in effect
at sentencing.
In any event, in light of the more—of the stan-
dards that I have just set out, with the guidelines
now being advisory, whether this was—case was be-
ing sentenced prior to November 1 or today, I would
have the authority, of course, to give the Defendant
any sentence within the statutory maximum.
But I do think that the guidelines as I computed
them here are reasonable, and I don’t think a sen-
tence at the mandatory minimum is appropriate
here.
I do think this case is a little bit different from
some of the others I’ve seen. There is a couple of
points that I think are really important that I have
to point out, Mr. Hensley.
And you know, what struck me in this case was
this notion of assuming these three different identi-
ties at the same time.
That was really troubling to me, where essential-
ly, you were posing as a sort of the good guy, who
was trying to talk to the—this purported 13 year old,
but doing it in more of an elliptical way.
Then you're online as kind of the bad guy, who
was much more forceful, aggressive, crude, whatever
adjective you want to describe it, also talking with
that same person.
And then at the same time posing as a 15 year
old girl, and telling this same person that, you know,
having sex as a 13 year old is fine, as long as you find
the right guy, with the clear implication being that
at that very same time that you're chatting with this
26a
target, you’re posing both as the good guy and the
bad guy.
You know, that really is calculated.
And it really demonstrates—it’s nefarious and
it’s a window, | think, into—into maybe what was
going on in your mind, a psyche that is perhaps
troubling.
When I add that to, you know, the photograph of
this young kid who was a student at Andrean High
School with your semen on it—it’s difficult to say
that in open court with your parents here—but that’s
very troubling.
And when I add into that the fact that it wasn’t
just that you were chatting online, that you did in
fact get in your car and you drove to Will Park.
I fully believe that had there been a 138 year old
girl there and this wasn’t an undercover agent, that
you would have attempted to have sex with her.
I firmly believe that.
And then what I saw today about this text mes-
sage about how you want to quote, unquote, “F” this
partner of your—tennis partner of your sister who is
perhaps 17 or 17 years old at the time when were
you 23 or 24, whatever, you know, it’s troubling.
I happen to think that a 10 year mandatory min-
imum, speaking broadly is really high though be-
cause it doesn’t take into account differing people
who commit this crime in different ways.
I just think it’s out of wack, and I think Congress
just flat has it wrong with a 10 year mandatory min-
imum.
27a
I just don’t think it’s appropriate. I’ve had cases
prior to this where, prior to the 10 year mandatory
minimum, somebody who actually met up with
somebody they met on line was mentally challenged
and got a much lower sentence than a 10 year man-
datory minimum.
The mandatory minimum at the time was five
years.
This isn’t an exercise in comparing cases, but I
just happen to think that a 10 year mandatory min-
imum is too high for these cases.
There needs to be more leeway and discretion in
my judgment, but that’s for Congress to decide.
That’s not for me to decide. But when I look at
what I just sort of delineated and so, I look at that
through the factors that I have to take into consider-
ation, the nature and circumstances of the offense. I
- do think it’s a serious offense.
And this behavior is troubling to me.
And so, I do think that a guideline sentence is
appropriate.
I am not going to give a sentence at the high end
of the guidelines. I think that is way too much in this
case.
But I also will note that when I look at the cha-
racteristics of the Defendant, I have sort of a Jekyll
and Hyde here. From all outward appearances you
seem like a perfectly reasonable young man, and
very smart too.
That your testimony during the suppression
hearing stuck with me as somebody who is pretty
bright.
28a
You come from a nice family it seems, but this
behavior with this kid in California was just as
troubling to me. So, I have this Jekyll and Hyde.
So, the characteristics of the Defendant strike me
as sort of a mixed bag here, but I am concerned with,
you know, fashioning a sentence that’s going to pro-
mote respect for the law, and more importantly, to
deter people from contemplating doing this type of
activity.
So, I'll now—taking all of that into consideration,
I’ll now state the sentence that I intend to give, but
I'll give counsel one final chance to make any final
objections.
All right. It is the judgment of the Court pur-
suant to Title 18 United States Code Section 3551
and 3553 as modified by United States versus Book-
er, it’s the judgment of the Court that the Defendant
Matthew Hensley is hereby committed to the custody
of the Bureau of Prisons for a term of 125 months.
Upon release from imprisonment, the Defendant
shall be placed on supervised release for a term of
five years.
Within 72 hours of release from the custody of
the Bureau of Prisons, the Defendant shall report in
person to the probation office in the district to which
the Defendant is released.
While on supervised release, Defendant shall not
commit another Federal, state or local crime and
shall comply with the 15 standard conditions that
have been adopted by this Court and shall comply
with the following additional conditions.
The Defendant shall cooperate in the collection of
DNA as directed by probation office.
29a
He shall also submit to one drug test within 15
days after being placed on supervised release and up
to two periodic tests per month thereafter.
The Defendant shall not illegally possess a con-
trolled substance, shall not possess a firearm or de-
structive device.
The Defendant shall also register with the state
or local sex offender registration agency in any state
where he resides or is employed, carries on a voca-
tion or is a student as directed by his probation offic-
er.
The Defendant shall participate in a sex offender
testing and evaluation program to include any psy-
chological behavioral assessments and polygraph ex-
aminations. The Defendant shall participate in a co-
payment program to offset the cost of the testing and
evaluation. And the co-payment amount is based on
the annual poverty guidelines established by the US
Department of Health and-Human Services on a slid-
ing scale basis.
The co-payment amount shall not exceed an
amount determined by the probation officer's sliding
scale for monthly co-payment.
The Defendant shall enter and attend sex offend-
er specific group and individual counseling at an ap-
proved outpatient treatment as part of his super-
vised release if it’s warranted from the testing that I
have just discussed. And he shall also participate in
paying for that program in a similar manner as I
have just described.
The Defendant shall neither possess nor have
under his control any matter that is—depicts or de-
scribes sexually explicit conduct as that defined—as
that’s defined in 18 USC 2256 or any manner—or
30a
any matter depicting or describing sexual activity in-
cluding any person under the age of 18.
The Defendant shall not have personal access to
a computer internet services unless the probation of-
ficer shall have access to that—-to that computer to
be able to verify that information.
The Defendant shall also submit his person and
any property, house, residence or computer to a
search at any time with or without a warrant by any
law enforcement officer or probation officer with rea-
sonable suspicion concerning a violation of a condi-
tion of his supervised release or any unlawful con-
duct by the Defendant.
The—it’s further ordered that the Defendant
shall pay to the United States a special assessment
of $100 which will be due immediately.
I’m going to waive the fine in this case, given the
defendant’s lack of assets and spotty employment
history makes it very unlikely that he will able to
pay a fine in this case.
All right. The sentence that I have just given is
within the advisory guideline range. That range ex-
ceeds 24 months. I find that the guideline range as
I've calculated it is reasonable and appropriate.
And that the sentence at the mid to low end of
the range is appropriate. I think it’s a hefty sentence
to begin with for the reasons I’ve already stated, but
a low end is not inappropriate again for the reasons
that I’ve already stated.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.