Opposition Brief — Hensley v. United States (No. 09-480)

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No. 09-480 [| OFRSI C7 THE CLERK |

Jn the Supreme Court of the Anited States

MATTHEW HENSLEY, PETITIONER

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

ELENA KAGAN

Solicitor General

Counsel of Record

LANNY A. BREUER

Assistant Attorney General

DANIEL S. GOODMAN

Attorney

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether the Ex Post Facto Clause bars the applica-

tion of the version of the advisory Sentencing Guidelines

in effect at the time of sentencing when the version of

the Guidelines in effect at the time of the offense pro-

vided for a lower advisory sentencing range.

(1)

TABLE OF CONTENTS

Page

ND iy 0.3 on odd ep oa a Fk Rs ee ee 1

Sw. vie bas oO ARE Ee a a ee 1

EP a Oe ee PPR res Pee 1

OES re errr errr ener rT Yer Tres 7

CE. 65 ex Fock as ee eee ae eee ee 16

TABLE OF AUTHORITIES

Cases:

Calder v. Bull, 3 U.S. (8 Dall.) 386 (1798) .............. 10

Gall v. United States, 128 S. Ct. 586 (2007) ....... 8, 12, 13

Irizarry v. United States, 128 S. Ct. 2198 (2008) ........ 13

Johnson v. United States, 529 U.S. 694 (2000) ......... 10

Kimbrough v. United States, 128 S. Ct. 558 (2007) ... 12, 13

Lumsden v. United States, cert. denied, No. 09-5374

PR ee ron te I ban a aun 9

Muller v. Florida, 482 U.S. 423 (1987) .............. 10, 14

Mower v. United States, 129 S. Ct. 487 (2008) ........... 9

Rita v. United States, 551 U.S. 338 (2007) ....... 11,12, 13

Spears v. United States, 129 S. Ct. 840 (2009) .......... 13

United States v. Booker, 543 U.S. 220 (2005) ......... 441

United States v. Demaree, 459 F.3d 79) (7th Cir.

2006), cert. denied, 551 U.S. 1167 (2007) ........ 7, 8, 14

United States v. Seacott, 15 F.3d 1380 (7th Cir. 1994) ... 11

United States v. Turner, 548 F.3d 1094 (D.C. Cir.

See coh re Sy he een Ae ee Ae Be . 14,15

Vincent v. United States, 129 S. Ct. 2863 (2009) ......... 9

(ITT)

Constitution, statutes, rule and guidelines: Page

U.S. Const.:

Art. I, § 9, cl. 3 (Ex Post Facto

NESE cnr) ee 7, 9, 10,11, 12, 14

Art. I, § 10, cl. 1 (Ex Post Facto

RS rcv ch tea see ugees kaa ew bak 7, 9, 10, 11, 12, 14

ME he 55s Go eb 8 ks A ed k Se aa A ES 11

Sentencing Reform Act of 1984, Pub. L. No. 98-473,

py ee ef ae) ar re 10

Be es I a6 kb nas as kee beeenene eeees 1, 3, 6

18 U.S.C. 3563(a) ..... RP ae eee ee rt’ 4, 5, 8, 12, 18

Bre ADD i gv 5k esc ei bs vk nck ccaccdees 10

Oe EE so cnc bob v ae ewebantaces wasenas 1]

eR Re re ee 13

United States Sentencing Guidelines (2006) ...... 3, 6, 8, 9

United States Sentencing Guidelines (2007) .... 4, 5, 6, 7,9

On ee a oe tant eee eae eee 10

8 re a eran eee

Hn the Supreme Court of the Anited States

No. 09-480

MATTHEW HENSLEY, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. la-14a)

is reported at 574 F.3d 384.

JURISDICTION

The judgment of the court of appeals was entered on

July 238, 2009. The petition for a writ of certiorari was

filed on October 21, 2009. The jurisdiction of this Court

is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District

Court for the Northern District of Indiana, petitioner

was convicted of using a facility of interstate commerce

to attempt to persuade a minor to engage in sexual ac-

tivity, in violation of 18 U.S.C. 2422(b). Petitioner was

sentenced to 125 months of imprisonment, to be followed

(1)

by five years of supervised release. The court of appeals

affirmed his conviction and sentence. Pet. App. la-14a.

1. Beginning on August 7, 2006, petitioner, who had

previously worked as a high school girls basketball

coach, struck up a conversation in a Yahoo! chat room

with undercover agents pretending to be a 13-year-old

girl (Jen). Pet. App. 2a; Presentence Investigation Re-

port 1 85-86 (PSR). Jen told petitioner that she was 13

years old, and petitioner responded, “oh what the hell

I’d still fuek you.” Pet. App. 2a. During the course of

the next two weeks, petitioner used four different screen

names, each purporting to be a different person, to en-

gage in sex-related on-line conversations with Jen. /d.

at 2a-4a. As “MattyMac99,” petitioner indicated that he

wanted to meet Jen and was interested in having sex

with her. Jbid. As “NPISCO26,” petitioner pretended

to he a 15-year-old girl and told Jen that “‘she’ loved

having sex with older men because they were more ex-

perienced than younger guys.” /d. at 3a-4a. Petitioner

“also told Jen that thirteen was old enough to have sex”

and “that her fears of pregnancy and sexually transmit-

ted diseases were overblown.” Jd. at 4a.

On August 18, 2006, petitioner agreed to meet Jen

near her house later that day. Pet. App. 4a. Petitioner

drove near the designated meeting spot but observed

police cars and did not stop. /bid. In an online chat ses-

sion that night, petitioner told Jen that he had not

stopped because “there were cops everywhere” and he

was concerned about being arrested. /bid.

Federal agents arrested petitioner at his home the

next day and executed a search warrant. Pet. App. 5a.

The agents seized a computer and discovered that the

screen names petitioner had been using to contact Jen

had originated from that computer. /bid. In addition,

agents learned that someone had attempted to delete

those screen names from the computer. /bid.

2. On September 8, 2006, a federal grand jury re-

turned an indictment charging petitioner with using a

facility of interstate commerce to attempt to solicit a

minor to engage in sexual activity, in violation of 18

U.S.C. 2422(b). See PSR'113. At trial, the government

introduced evidence of petitioner’s prior online relation-

ship with T.G., a minor from California who was 12 years

old when petitioner first began chatting with her. Pet.

App. 5a. Even though petitioner knew T.G.’s age, he had

“engag[ed] in phone sex” with her and “had told her he

was going to make preparations to fly out to see her.”

Id. at 5a-6a. The petit jury convicted petitioner of the

instant offense. Jd. at 6a.

Petitioner’s sentencing was originally scheduled for

October 31, 2007. See PSR 91 5; 2:06-cr-00168-PPS-APR

Docket entry No. 80 (N.D. Ind. July 13, 2007). Accord-

ingly, the Probation Office prepared the PSR using the

2006 edition of the United States Sentencing Guidelines

(2006 Guidelines). PSR 454. Under the 2006 Guide-

lines, petitioner’s advisory sentencing range, before con-

sideration of the statutory mandatory minimum sen-

tence, was 78 to 97 months of imprisonment. PSR 4] 100.

Under 18 U.S.C. 2422(b), however, petitioner was sub-

ject to a statutory mandatory minimum sentence of 10

years of imprisonment. As a result, petitioner’s ultimate

advisory Guidelines range under the 2006 Guidelines

was 120 months of imprisonment. PSR 1 101; Sentenc-

ing Guidelines § 5G1.1(b).

On October 23, 2007, the district court entered an

order vacating the October 31 sentencing date and re-

setting petitioner’s sentencing for December 14, 2007.

2:06-cr-00168-PPS-APR Docket entry No. 938 (N.D.

Ind.). Therefore, on November 6, 2007, the Probation

Office issued an addendum to the PSR that reflected

changes in the advisory Guidelines in the 2007 United

States Sentencing Guidelines (2007 Guidelines), which

became effective on November 1, 2007. Under the 2007

Guidelines, petitioner’s advisory sentencing range, with-

out consideration of the statutory mandatory minimum

sentence, was 121 to 151 months of imprisonment. 2d

Add. to PSR 1 127. Because the bottom of that range

was greater than the statutory mandatory minimum of

120 months of:imprisonment, Guidelines § 5G1.1(b) no

longer trumped the otherwise applicable advisory

Guidelines range.

At his January 11, 2008, sentencing hearing, peti-

tioner announced that his “only dispute” with the Proba-

tion Office’s calculation of his advisory Sentencing

Guidelines range was “as to which set of guidelines you

use[,] 2006 versus 2007.” Pet. App. 17a. Ignoring

Guidelines § 5G1.1(b), petitioner asserted that under the

2006 Guidelines, his. advisory Guidelines range would

have been 78 to 97 months of imprisonment. /d. at 19a.

The district court overruled petitioner’s objection to

using the 2007 Guidelines and calculated his advisory

Guidelines range under those Guidelines as 121 to 151

months of imprisonment. /d. at 20a-2la. Petitioner

subsequently asked the court “to craft a sentence of no

more than 120 months, the mandatory minimum.”

1/11/08 Sent. Tr. 41.

The district court rejected that request. The court

noted that the Guidelines “now are one factor in con-

junction with a whole host of other factors in [18 U.S.C.

3553(a)] that the [cJourt should take into consideration

in arriving at a sentence,” and that “there is no pre-

sumption that the guidelines are, in fact, reasonable.”

Pet. App. 24a. In light of the Section 3553(a) factors, the

court concluded that it “d[id]n’t think a sentence at the

mandatory minimum is appropriate here.” /d. at 25a.

In reaching that conclusion, the court elaborated that

there were “a couple of points that [it thought were]

really important.” Pet. App. 25a. First, the court point-

ed out that petitioner had been communicating with Jen

using multiple “different identities at the same time,”

which the court found to be “calculated” and “nefarious.”

Id. at 25a-26a. Second, the court found it “very trou-

bling” that petitioner kept a “photograph of this young

kid who was a student at” the high school where peti-

tioner had been a coach and that photograph has his

“semen on it.” /d. at 26a. Third, the court noted that

petitioner did not simply solicit sex from Jen online but

“did in fact get in [his] car” and drive to the place where

he was supposed to meet her. /bid. The court “fully be-

liev[ed] that had there been a 13 year old girl there,”

rather than “an undercover agent,” petitioner “would

have attempted to have sex with her.” Jbid. Fourth, the

court found “troubling” a text message that petitioner

wanted “to quote, unquote, ‘F’’” his sister’s 17-year-old

tennis partner. /bid. Finally, the court indicated that

petitioner’s behavior with T.G., the minor from Califor-

nia with whom he had a sexual relationship online, was

also “troubling.” /d. at 28a. For all those reasons, and

“to deter people from contemplating doing this type of

activity,” the court did not sentence petitioner to the

statutory mandatory minimum (120 months) or to the

bottom of his advisory Guidelines range under the 2007

Guidelines (121 months), but instead imposed a sentence

of 125 months of imprisonment. /bid.

3. The court of appeals affirmed petitioner’s convic

tion and sentence. Pet. App. la-l4a. The court first

rejected petitioner’s argument that the district court

erred in admitting evidence of his online relationship

with minor T.G, /d. at 6a-10a. Because petitioner con-

tended that he believed that Jen was really 18, the court

of appeals concluded that the evidence about T.G. “was

highly relevant to showing the opposite; it demonstrated

that [petitioner] had no qualms about pursuing a sexual

relationship with a person he knew was a minor.” /d. at

9a. Even without the evidence concerning petitioner’s

relationship with T.G., however, the court of appeals

believed that “a reasonable jury easily could have found

that [petitioner] was guilty of attempting to persuade

Jen to engage in sexual activity with him in violation of

§ 2422(b).” Jd. at 10a.

Next, the court of appeals rejected petitioner’s argu-

ment that he had not taken a “substantial step” toward

the completion of his Section 2242(b) offense. Pet. App.

10a-12a. The court explained that petitioner’s conduct

involved “much more” than “sex talk alone.” /d. at 11a.

Petitioner “‘groom[(ed]’ Jen for sex by conversing with

her using multiple online personas,” he “arrange[d] a

meeting place and time to meet her,” and “he actually

traveled to the meeting place, being deterred from the

encounter only by the presence of law enforcement.”

Ibid. In addition, the court continued, there was evi-

dence showing petitioner’s “consciousness of guilt,” in-

cluding his “attempted destruction of the incriminating

chat profiles after he noticed police near the prear-

ranged meeting place.” Jd. at 12a.

Finally, the court of appeals rejected petitioner’s

challenge to the district court’s use of the 2007 Guide-

lines, rather than the 2006 Guidelines, to compute his

advisory sentencing range. Pet. App. 12a-13a. Petition-

er acknowledged that the district court’s decision was

consistent with the court of appeals’ decision in United

States v. Demaree, 459 F.3d 791 (7th Cir. 2006), cert.

denied, 551 U.S. 1167 (2007), which had “held that a dis-

trict court can apply a change in the Guidelines that ex-

pands a defendant’s advisory guidelines range without

offending the Ex Post Facto Clause.” Pet. App. 12a-13a.

Although petitioner recognized that Demaree was the

law of the circuit, he suggested that the court of appeals

make an exception to Demaree because the government

had asked for the continuance of his sentencing hearing.

Id. at 13a. Noting that petitioner did not contend “that

the government intentionally delayed the sentencing so

the [Guidelines] amendment would take effect,” the

court concluded that “[rjegardless of who sought the

continuance, the district judge was entitled to take into

account the change in the Guidelines when fashioning a

sentence.” /d. at 13a & n.5. “Because [petitioner]

mal[de] no further challenge to his sentence,” the court

of appeals concluded, the court would “not disturb it.”

Id. at 13a.

ARGUMENT

Petitioner contends (Pet. 9-82) that the district

court’s use of the 2007 edition of the Sentencing Guide-

lines to calculate his advisory sentencing range violated

the Ex Post Facto Clause of the United States Constitu-

tion. That claim does not warrant this Court’s review.

1. First, this case is not an appropriate vehicle to

address that issue because the district court’s explana-

tion of its sentencing decision leaves little doubt that the

court would have imposed the same sentence even if the

court had calculated petitioner’s advisory sentencing

range using the 2006 edition of the Sentencing Guide-

lines. After United States v. Booker, 543 U.S. 220

(2005), district courts are no longer required (or even

permitted) to treat the Guidelines-recommended range

as the presumptive sentencing range, and they may sen-

tence anywhere within the statutory range based on

appropriate consideration of the sentencing factors

listed in 18 U.S.C. 3553(a). See Gall v. United States,

128 S. Ct. 586, 596-597 (2007). In reaching its sentenc-

ing determination, a court may (even if it is not required

to do so) take into consideration that more recent ver-

sions of the Sentencing Guidelines would result in a

higher advisory sentencing range. See United States v.

Demaree, 459 F.3d 791, 795 (7th Cir. 2006), cert. denied,

551 U.S. 1167 (2007).

In the present case, the earlier, 2006 version of the

Sentencing Guidelines resulted in a recommended sen-

tencing “range” that was actually a single point, the

statutory mandatory minimum sentence of 120 months

of imprisonment. PSR 1 101; see Guidelines § 5G1.1(b).

Although the district court did not use the 2006 Guide-

lines to calculate petitioner’s advisory sentencing range,

the court took the sentence recommended by the 2006

Guidelines into account and rejected that recommenda-

tion, expressly concluding that “something certainly

above the mandatory minimum sentence is appropriate

here.” 1/11/08 Sent. Tr. 47; see Pet. App. 25a (“I don’t

think a sentence at the mandatory minimum is appropri-

ate here.”).

Even though the court, “speaking broadly,” thought

that a “10 year mandatory minimum” was generally “too

high for these cases,” the court determined that, in this

case, a 10-year sentence was too low. Pet. App. 26a-27a.

The court listed numerous reasons for its conclusion that

petitioner’s crime deserved an unusually harsh sentence,

including petitioner's use of multiple online personalities

to groom Jen for sex, his use for sexual gratification of

a photograph of a minor student at the school where he

taught, his active attempt to meet Jen in person, his ex-

pressed interest in having sex with other minors, and his

long online relationship with minor T.G. /d. at 25a-28a.

Despite all those reasons for sentencing petitioner above

the 120-month figure that represented both the statu-

tory mandatory minimum and the 2006 Guidelines

range, the court imposed a sentence of only 125 months

of imprisonment, just five months higher than the mini-

mum and near the bottom of his 2097 Guidelines range.

Id. at 28a. Nothing in the record suggests that peti-

tioner received a longer sentence because his 2007

Guidelines range was 121 to 151 months of imprison-

ment, rather than the 120 months recommended by the

2006 Guidelines.

2. In any event, the ex post facto issue raised by pe-

titioner does not warrant this Court’s review at the pres-

ent time. Given the Court’s recent decisions clarifying

the role of the Guidelines in the post-Bouker sentencing

regime, the court of appeais eccrrectly concluded that use

of the Guidelines in effect at the time of sentencing does

not violate the Ex Post Facto Clause. Although the D.C.

Circuit has rejected that conclusion, that conflict does

not currently warrant intervention by this Court. | In-

deed, the Court has recently denied petitions raising the

same claim. See Lumsden v. United States, cert. de-

nied, No. 09-5374 (Nov. 16, 2009); Vincent v. United

States, 129 S. Ct. 2868 (2009); Mower v. United States,

129 S. Ct. 487 (2008). The Court should follow that

course here as well.

a. Article I of the Constitution prohibits Congress

or any State from passing any “ex post facto Law.” U.S.

Const. Art. I, § 9, cl. 3; 2d. Art. I, § 10, el. 1. The ex post

facto prohibition “bars application of a law ‘that changes

the punishment, and inflicts a greater punishment, than

the law annexed to the crime, when committed.’” John-

son v. United States, 529 U.S. 694, 699 (2000) (quoting

Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798)).

The Sentencing Reform Act of 1984 (SRA) generally

requires that sentencing courts determine a defendant’s

sentence using the Sentencing Guidelines “in effect

on the date the defendant is sentenced,” rather than

the Guidelines in effect at the time the defendant com-

mitted the crime for which he was convicted. 18 U.S.C.

3553(a)(4)(A)Gii). The Sentencing Guidelines likewise

provided that a sentencing court “shall use the Guide-

lines Manual in effect on the date the defendant is sen-

tenced,” unless “the court determines that use of” that

version of the Guidelines “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 convic-

tion was committed.” Sentencing Guidelines § 1B1.11.

In Miller v. Florida, 482 U.S. 423 (1987), this Court

held that the Ex Post Facto Clause barred the retroac-

tive application of revised Florida Sentencing Guidelines

that increased a defendant’s presumptive sentencing

range compared to the guidelines in effect at the time

that the defendant committed the offense. The Court

reasoned that the new guidelines “substantially disad-

vantaged” the defendant, because the state system cre-

ated a “high hurdle that must be cleared before discre-

tion [could] be exercised” to impose a non-guidelines

sentence. /d. at 432, 435. The Court distinguished the

Florida guidelines system from the United States Parole

Commission’s guidelines, noting that the federal parole

guidelines “simply provide flexible ‘guideposts’ for use

in the exercise of discretion.” /d. at 435.

Before this Court’s decision in Booker, the United

States Sentencing Guidelines were mandatory, and a

district court could sentence outside the Guidelines

range only if the court found “an aggravating or mitigat-

ing circumstance of a kind, or to a degree, not ade-

quately taken into consideration by” the Guidelines. 18

U.S.C. 3553(b)(1). In light of the mandatory nature of

the Guidelines, the courts of appeals uniformly held

that, under this Court’s analysis in Miller, the Ex Post

Facto Clause precluded application of revised Guidelines

provisions that provided for a more severe sentence than

authorized by the Guidelines in effect when the defen-

dant committed the offense. See, e.g., United States v.

Seacott, 15 F.3d 1380, 1386 (7th Cir. 1994).

In Booker, however, the Court held that the manda-

tory Guidelines system violated the Sixth Amendment,

and the Court remedied that violation by severing cer-

tain provisions of the SRA and thus rendering the

Guidelines “effectively advisory.” 543 U.S. at 245. The

Court explained that, under the new sentencing regime,

the SRA still requires “a sentencing court to consider

Guidelines ranges, * * * but it permits the courts to

tailor the sentence in light of other statutory concerns as

well.” Jd. at 245-246. The Court in Booker did not de-

scribe the precise weight that the Guidelines would have

in post-Booker sentencing determinations.

Accordingly, the courts of appeals developed various

rules to elaborate on the role of the Guidelines in post-

Booker sentencing. Those rules included a presumption,

on appellate review, that within-Guidelines sentences

were reasonable, see Rita v. United States, 551 U.S. 338,

341 (2007), and a proportionality principle, under which

the farther a sentence varied from the advisory sentenc-

ing range, the stronger the justification required to sup-

port the sentence, see Gall, 1288S. Ct. at 591. The courts

of appeals also almost uniformly concluded that a dis-

trict court could not sentence outside the Guidelines

range based on a policy disagreement with the Guide-

lines. See Kimbrough v. United States, 128 S. Ct. 558,

564 (2007). In light of those rules, the government took

the position that, even after Booker, the Ex Post Facto

Clause continued to prevent application of Guidelines

amendments that increased a defendant’s advisory sen-

tencing range above the range that would have ap-

plied when the defendant committed the offense. See,

e.g., Br. in Opp., Demaree v. United States, No. 06-8377,

2007 WL 868878, at *3-*4.

This Court’s recent decisions explaining the role of

the Guidelines in post-Booker sentencing have, however,

made clear that the Guidelines have a different role

from what the government and most courts of appeals

had previously believed. In Rita, the Court said that,

although a court of appeals may presume that a within-

Guidelines sentence is reasonable, such a presumption

is optional. 551 U.S. at 341, 347, 354. See Gall, 128

S. Ct. at 597. The Court further stated that any pre-

sumption does not have “independent legal effect, [but]

simply recognizes the real-world circumstance that

when the judge’s discretionary decision accords with the

[Sentencing] Commission’s view of the appropriate ap-

plication of § 3553(a) in the mine run of cases, it is prob-

able that the sentence is reasonable.” Rita, 551 U.S. at

350-351. And the Court added that the presumption of

reasonableness is only “an appellate court presumption”

that may not be applied by a sentencing court. /d. at

351. The Court stressed that neither the district court

nor the court of appeals may apply “a presumption of

unreasonableness” to a sentence outside the Guidelines

range. /d. at 354-355.

In Gall, the Court held that a court of appeals cannot

apply a proportionality principle that would demand an

increasingly strong justification the farther a sentence

varies from the advisory guidelines range. 128 S. Ct. at

594. And, in Kimbrough, the Court held that, contrary

to the view previously adopted by virtually all federal

courts of appeals, sentencing “courts may vary [from

Guidelines ranges] based solely on policy considerations,

including disagreements with the Guidelines.” 128 S. Ct.

at 570 (citation omitted). The Court recently reaffirmed

that holding in Spears v. United States, 129 S. Ct. 840

(2009) (per curiam), reiterating that district courts gen-

erally have authority to vary from the “Guidelines based

on policy disagreement with them, and not simply based

on an individualized determination that they yield an

excessive sentence in a particular case.” /d. at 843.

The Court’s other recent pronouncement on the

Guidelines reinforces the view, expressed in Kimbrough,

that the Guidelines are just “one factor among several”

that “courts must consider in determining an appropri-

ate sentence.” Aimbrough, 128 S. Ct. at 564. In Jrizar-

ry v. United States, 128 8. Ct. 2198 (2008), the Court

held that Federal Rule of Criminal Procedure 32(h),

which requires a sentencing court to give notice to the

parties before “depart[{ing]” from the Guidelines on a

ground not previously identified, does not require notice

when a court sentences outside the advisory range based

on the sentencing factors in 18 U.S.C. 3553(a). The

Court explained that, after Booker, defendants no longer

have “[a]ny expectation subject to due process protec-

tion” that they will receive a sentence within the Guide-

lines range. /rizarry, 128 S. Ct. at 2202.

In light of the Court’s recent decisions clarifying that

the Guidelines are now “purely advisory,” Demaree, 459

F.3d at 794, the United States has determined that the

Seventh Circuit adopted the correct legal rule in

Demaree: the Ex Post Facto Clause does not bar the

application of the current version of the advisory Guide-

lines at the time of sentencing, even when the version of

the Guidelines in effect at the time of the offense pro-

vided for a lower advisory sentencing range. The Guide-

lines constitute advice, not legally binding rules that

establish a “high hurdle that must be cleared before dis-

cretion can be exercised” to impose a different sentence.

Miller, 482 U.S. at 435. Thus, notwithstanding peti-

tioner’s contentions (Pet. 24-32), the court of appeals

correctly rejected petitioner’s ex post facto challenge in

this ease.

b. Petitioner asserts (Pet. 10-14) that this Court’s

review is warranted because the Seventh Circuit’s hold-

ing in Demaree and in the present case—that application

of revised Sentencing Guidelines does not present an ex

post facto problem—conflicts with the D.C. Circuit’s

decision in United States v. Turner, 548 F.3d 1094,

1099-1100 (2008). Petitioner acknowledges, however,

that “[n]lo other court of appeals has squarely decided

whether the Ex Post Facto Clause applies to retroactive

application of the now-advisory Guidelines.” Pet. 14; see

Pet. 14-20 (describing dicta in other cases). The narrow

conflict between the D.C. and Seventh Circuits does not

warrant this Court’s review at this time.

Although the D.C. Circuit rejected the Seventh Cir-

cuit’s ex post facto holding in Demaree, it did so without

analyzing Kimbrough and without the benefit of the

clarification of Kimbrough’s holding in Spears. More-

over, Turner was briefed and argued before the govern-

ment adopted its current position on the ex post facto

question, and thus the D.C. Circuit issued its decision in

Turner without a full exposition of the government’s

revised views. See Gov’t Br. at 28-33, United States v.

Turner, No. 07-3107 (D.C. Cir. filed Feb. 29, 2008) (im-

plicitly conceding that the Ex Post Facto Clause pre-

cludes application of revised Guidelines that increase the

advisory sentencing range); Letter from Edward Sulli-

van, Trial Attorney, United States Dep’t of Justice, to

Hon. Mark J. Langer, Clerk, United States Court of

Appeals for the D.C. Circuit, re: United States v. Turn-

er, No. 07-3107 (D.C. Cir.) (Aug. 22, 2008) (noting, in a

post-briefing letter, that “the Department of Justice,

effective August 8, 2008, is of the position that the

Clause does not bar application of a post-offense amend-

ment that increases the advisory Guidelines range”).

If the conflict between the Seventh and D.C. Circuits

persists, the issue may eventually warrant this Court’s

resolution in an appropriate case. But until the D.C.

Circuit has an opportunity to revisit its views, in light of

both this Court’s recent decisions and the changed posi-

tion of the United States, the conflict does not warrant

the Court’s review. In any event, this case would not

present an appropriate vehicle to consider the question,

because there is no reason to believe that the applicable

rule would have made a difference in petitioner’s sen-

tence.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.