In U.S. v. Thomas, No. 05-14151 (Apr. 26, 2006), the Court rejected the defendant’s Booker/Blakely-based ex post facto challenge to his sentence, as well as a Fifth Amendment Indictm Clause argument.
The defendant, who committed his offense pre-Booker, when the Guidelines were not yet advisory, claimed that the Guidelines could not be applied in an advisory way to his conduct without violating ex post facto principles. Rejecting this argument, the Court found no ex post facto because, at the time Thomas committed his crime, the United States Code specified a statutory maximum of life imprisonment for his crime, and the Guidelines informed the defendant that the sentencing judge could engage in fact-finding and could impose a possible life sentence. Thomas said he understood this during the plea colloquy. Thus, the Court found no merit in the argument that Thomas relied on the constitutional implication of Blakely: both at the time he committed his crime and at the plea colloquy, Thomas was on notice that he could receive a sentence within the statutory range based on judicial factfinding that went beyond the jury’s verdict or the facts he admitted in his plea colloquy.
The Court was also unpersuaded by the argument that all facts used to enhance Thomas’s sentence should have been alleged in the indictment. The Court pointed out that under Booker only the use of facts under a mandatory guidelines system created constitutional problems. Here, the district court enhanced Thomas’ sentence based on advisory guidelines.
Finally, the Court rejected Thomas’ challenge to the reasonableness of his sentence. The Court found that the 121-month sentence for being the ring-leader in an attempted robbery was reasonable, and noted that the district court imposed a low-end Guideline sentence based on Thomas’ remorse.
