In Kumar, the government charged the former CEO of Computer Associates, a publicly traded company, along with the company’s head of North American sales, with various crimes relating to a securities fraud scheme. The case arose out of a fraudulent accounting practice known as the “35-day month.” The company had backdated contracts executed in the first few days of a financial quarter to recognize revenue from those contracts in the prior quarter. The illegal purpose of the practice was to make investors believe that the company had met or exceeded its quarterly earnings estimates. Eventually, the defendants pleaded guilty to fraud and other offenses. They were sentenced in November 2006.

Ordinarily, a sentencing court is required to apply the guidelines in effect at the time of sentencing. See U.S.S.G. § 1B1.11(a). If the application of that rule creates an ex post facto problem, however, then a sentencing court is required to apply the guidelines in effect at the time of the offense conduct. The binary choice required under the guidelines is commonly known as the “one-book rule.” See U.S.S.G. § 1B1.11(b)(1); Miller v. Florida, 482 U.S. 423, 430 (1987) (Ex Post Facto clause implicated if a law applies to events that occurred before its enactment and disadvantages the defendant affected by the law);  Weaver v. Graham, 450 U.S. 24, 30 (1981) (“the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated” is central to the ex post facto prohibition).

The conduct underlying the charged fraud offenses in Kumar ended in 2000. Certain uncharged obstructive conduct relating to the fraud offenses had continued until 2005. The district court applied the 2005 guidelines (the version in effect at the time of sentencing) instead of the 1998 guidelines (the version in effect at the time of the offense conduct). The 2005 version of the guidelines contained several sentencing enhancements that did not exist in the 1998 version, including an enhancement for obstructive conduct. The district court, after deciding that defendants had obstructed the government’s investigation of the underlying conduct, applied the enhancement.

On appeal, the defendants argued that they were unfairly punished by application of the 2005 guidelines under the one-book rule because the enhancement did not exist before 2000 at the time of the offense conduct. The panel majority decided that the application of the 2005 guidelines clearly disadvantaged the defendants under the Miller standard because their sentencing ranges under the guidelines were much higher than they would have been if the 1998 guidelines had been applied. But the panel majority concluded that no ex post facto problem existed under Miller because the application of the 2005 guidelines was not retrospective. According to the Kumar majority, the defendants had fair notice of the consequences of committing obstructive conduct postdating the offense conduct because the one-book rule had been adopted before their offense conduct occurred.

Judge Sack, in dissent, stated that “the majority give[s] insufficient attention to the quality of notice that ex post facto jurisprudence requires. It is not notice simpliciter, but notice that is ‘fair.’” Slip op. at 19. In other words, Judge Sack stated a view that any notice created by the existence of the one-book rule existed at a level of generality too high to permit an enhancement based on an amendment to the guidelines that had been promulgated after the offense conduct. Ultimately, the disagreement between the panel majority and Judge Sack involves the types of line-drawing and contextual issues concerning the scope and meaning of notice that are often present in litigation under the Due Process Clause.

All of this invites a more basic question: What practical difference does ex post facto analysis make when the sentencing guidelines are simply one non-binding factor that a court must consider under 18 U.S.C. § 3553(a)? The Seventh Circuit, in an opinion by Judge Posner, has held squarely that the Ex Post Facto clause does not even apply to the post-Booker advisory sentencing guidelines. See United States v. Demaree, 459 F.3d 791, 795 (7th Cir. 2006) (“We conclude that the ex post facto clause should apply only to laws and regulations that bind rather than advise[.]”). According to Demaree, a sentencing judge who agrees with a guideline enhancement that was promulgated after the offense conduct can reach the same result through another means under 18 U.S.C. § 3553(a) as if he or she were directly applying the guideline enhancement. Id. (“[A] rule that a guidelines change cannot be applied retroactively if it would be adverse to the defendant would have in the long run a purely semantic effect”). (Even before United States v. Booker, when the sentencing guidelines were mandatory, Judge Easterbrook took the position that “sentencing guidelines are not ‘laws’ within the scope of [the Ex Post Facto] clause.” See United States v. Vivit, 214 F.3d 908, 924 (7th Cir. 2000) (concurring opinion).) Other circuits have disagreed with Demaree.  See, e.g., United States v. Turner, 548 F.3d 1094, 1099-1100 (D.C. Cir. 2008).

In Kumar, the district court had held (consistent with Demaree) that “because the Guidelines [are] advisory, the Ex Post Facto clause [is] not implicated by sentencing decisions.” Slip op. at 8. The court of appeals, however, chose to sidestep that bedrock question entirely. See slip op. at 25 n.12 (majority opinion); id. at 11 n.7 (dissenting opinion). Presumably, the Second Circuit proceeded in that manner because the government on appeal disclaimed any reliance on the district court’s position. Slip op. at 25 n.12. In Demaree, the government similarly had argued on appeal that the Ex Post Facto clause applies to the advisory guidelines. Not mincing words, Judge Posner characterized the government’s position as a “rearguard action against Booker” and an effort to make the guidelines “bind as tightly as possible.” 459 F.3d at 795.  (Now, the government has taken a position at odds with its stance in Demaree and Kumar. See United States v. Lanham, et al., Nos. 08-6504/6506, 09-5094/5095, slip op. at 20 (6th Cir., Aug. 24, 2010) (rejecting government’s argument that harsher, post-conduct version of the guidelines applied and stating that advisory nature of guidelines does not eliminate ex post facto concerns).  This is either a change of course or the Acting Solicitor General will need to impose order here.)

Whether one chooses to accept Judge Posner’s brand of legal realism, there is no question that a district judge has broad discretion to reach results under Section 3553(a) that vary substantially from the guidelines. In Kumar itself, the district court varied downward from life sentences recommended by the guidelines and imposed sentences of 7 years and 12 years. In the end, the type of intense legal skirmishing exemplified by Kumar may demonstrate, more than anything else, that the advisory guidelines continue to have a tethering effect despite their status under Section 3553(a) as a single factor among many that must be considered by courts in federal sentencing proceedings.

In Speakman, the defendant pleaded guilty to wire fraud in violation of 18 U.S.C. § 1343. The plea agreement stipulated that the defendant defrauded his ex-wife by forging her signature and transferring her funds to himself. The district court sentenced the defendant to a term of imprisonment and ordered restitution.

The district court’s restitution order had two components. First, the court ordered the defendant to pay a brokerage firm $1,225,000. That was the amount paid by the firm to the defendant’s ex-wife in an arbitration proceeding after the fraud was discovered. Second, the court ordered the defendant to pay $194,205.77 – the remainder resulting from the fraud as calculated by the court – to the Crime Victims Fund because defendant’s ex-wife had expressly declined to receive further restitution from the defendant. (The Crime Victims Fund is an entity created by Congress in 1984 to assist victims of crime. See http://www.ojp.usdoj.gov/ovc.) The district court believed that the governing statute mandates an order of restitution even when the victim declines to receive compensation.

On appeal, the defendant challenged both components of the restitution order. First, he argued that the brokerage firm was not a “victim” within the meaning of the governing statute. The Tenth Circuit held that the record was unclear on that issue and remanded the case for further factual development. Second, the defendant argued that the court lacked authority to order payment to the Crime Victims Fund. The court of appeals agreed and reversed that portion of the restitution order.

As the Tenth Circuit stated, “‘[f]ederal courts possess no inherent authority to order restitution, and may only do so as explicitly empowered by statute.’” Slip op. at 20 (citation omitted). Although the governing statute permits a victim to assign an interest in restitution to the Crime Victims Fund, the victim in Speakman had not done that. Without an assignment, the Tenth Circuit held that the tangle of relevant federal statutory provisions does not permit restitution when the victim declines payment.

Unlike the Tenth Circuit, the Second Circuit has affirmed a district court’s order requiring a defendant to make restitution to the Crime Victims Fund without an assignment of interest by the victim.  See United States v. Johnson, 378 F.3d 230, 244 (2d Cir. 2004). In Speakman, the Tenth Circuit explicitly disagreed with the Second Circuit’s construction of the governing statute. Slip op. at 24. More broadly, however, the Tenth Circuit identified a “deeper disagreement between our two courts about the nature of restitution.” Id. at 25. According to the Tenth Circuit, the federal statute governing restitution “does not inflict criminal punishment, and thus is not punitive.” Id. (citation omitted; emphasis in original). Thus, “[i]f the victim declines restitution but the court nevertheless orders the defendant to pay a sum of money to another entity, this punishes the defendant without in any way compensating the victim[,]” which the court held is improper. Id. The Second Circuit, in contrast, takes the position that “[r]estitution undoubtedly serves traditional purposes of punishment.” United States v. Brown, 744 F.2d 905, 909 (2d Cir. 1984).

The federal restitution statute is the subject of ongoing disputes. Just last month, for instance, the Supreme Court granted review in Dolan v. United States, No. 09-367, which presents the question whether a district court may enter a restitution order beyond the time limit prescribed by 18 U.S.C. § 3664(d)(5). Over the years, Congress has acted many times to modify the statutory framework with unsatisfactory results. Short of more careful congressional action, conflicts like the one identified in Speakman, and the uncertainty they engender, will persist, subject only to the policing that the Supreme Court may choose (or not choose) to perform.