In U.S. v. Bordon, No. 04-10654 (Aug. 25, 2005), the Court (Anderson, Pryor, Hill), on a third appeal following a sentening and a resentencing, affirmed the sentences.
The defendants argued that it would violate Ex Post Facto to apply the Feeney Amendment provision which required a sentencing court to apply the version of the Guidelines which was in effect at the time of the defendants’ original sentencing. Application of this version of the Guidelines would deny the defendants the benefit of a recent change in the Guidelines. The Court noted that Ex Post Facto does not guarantee favorable changes in the law but merely protects against increased penalties.
The Court also affirmed the district court’s refusal to reconsider the monetary loss associated with the offenses, pointing out that the "law of the case" doctrine precluded revisiting this issue.
The Court also rejected the argument that the seventeen month delay betwen the issuance of the mandate after the second appeal and the subsequent resentencing violated the right to a speedy trial. The Court pointed out that a large part of the delay was due to defendants’ own brieifing of complicated issues.
In a footnote, the Court noted that no Booker relief was appropriate, despite the evidence "plain error" in the sentence – the district court stated on the record it would have imposed a lesser sentence but for the mandatory guidelines – because the defendants failed to raise Booker in their initial briefs.
