Wetherald: Ex Post Facto Clause, Post-Booker, Applies to Guidelines

In U.S. v. Wetherald, No. 09-11687 (March 28, 2011), affirming multiple fraud convictions, the Court held that even though the Guidelines, post-Booker, are not mandatory, the Ex Post Facto Clause still requires a district court not to apply a harsher Guideline that took effect after the defendant’s conduct, unless the district court a sentencing makes clear that it does not feel bound by the more recent, harsher Guidelines. Here, the district court stated that it would impose a sentence below the advisory guideline range. Moreover, the district court in fact did impose significantly lower sentences than the guideline range. The defendants could only offer speculation that the district court’s sentences were affected by the more recent Guidelines. Thus, no Ex Post Facto violation occurred. The Court also rejected the argument that the fraud offense of convictions involved partnerships, not securities. The Court pointed out that the investors had no say in the decisions of the fraudulent entities at issue.