by Douglas Ankney

The U.S. Court of Appeals for the First Circuit held that a district court violated the Ex Post Facto Clause when it applied the 2016 Guidelines Sentencing Manual to an ungrouped offense committed in 2001. This case of first impression in the First Circuit “concerns the interaction between the Sentencing Guidelines’ grouping rules, the one-book and multiple-offense rules, and the U.S. Constitution’s Ex Post Facto Clause,” the Court explained.

Sometime in 2001, Stephen Mantha videotaped himself molesting a six- to eight-year-old child. Fifteen years later, the U.S. Postal Service caught him searching for and viewing child pornography on his workplace computer. A search of Mantha’s home unearthed the recorded 2001 molestation, as well as electronic storage devices containing additional child pornography.

Mantha eventually pleaded guilty to (1) sexual exploitation of a minor resulting from the 2001 incident, (2) access with intent to view child pornography for the incidents on his workplace computer in 2016, and (3) possession of child pornography resulting from the 2016 possession of electronic storage devices.

The Presentence Investigation Report (“PSR”) prepared by the Probation Officer grouped the second and third offenses but not the first offense because the 2001 offense was insufficiently related to the more recent other two offenses. But the PSR employed the 2016 Guidelines Manual to calculate the applicable offense levels for the two grouped offenses and for the 2001 ungrouped offense.

Due to an amendment to the 2016 manual, the 2001 offense generated an adjusted offense level (“AOL”) of 40 and resulted in a Guidelines Sentencing Range (“GSR”) of 210 to 240 months.

Under the pre-amendment version of the manual that was in effect in 2001, the AOL would be 33, and the GSR would be 121 to 151 months. Mantha and the Government both objected to the application of the 2016 manual to the 2001 offense on Ex Post Facto grounds, but the district court rejected their objections, stating, “I’ve spent a good part of the morning talking with counsel for the probation office, [and] I am going to keep the offense level and category the same.” The court sentenced Mantha to 196 months.

When the Government asked if the sentence would have been the same under the lower GSR, the judge said, “I thought about that, and I believe that would have been the sentence that I was going to impose under either scenario.” Mantha appealed, arguing the application of the 2016 Guidelines Manual to the 2001 offense violated the Ex Post Facto Clause.

The First Circuit observed that the Guidelines adopt what is known as the “one-book rule”: “The Guidelines Manual in effect on a particular date shall be applied in its entirety.” U.S.S.G. § 1B1.11(b)(2). The Guidelines also set forth what is known as the “multiple-offense rule”: “If the defendant is convicted of two offenses, the first committed before, and the second after, a revised edition of the Guidelines Manual became effective, the revised edition of the Guidelines Manual is to be applied to both offenses. § 1B1.11(b)(3). The multiple-offense rule applies regardless of whether or not the offenses are grouped. § 1B1.11 cmt. background.

But the Guidelines Manual also warns that the manual in effect at the time of sentencing should not be used if doing so would violate the Ex Post Facto Clause. § 1B1.11(b)(1). The U.S. Constitution states that “[n]o ... ex post facto Law shall be passed.” U.S. Const. art I, § 9, cl. 3.

Application of a version of the Sentencing Guidelines adopted after the offense was committed violates the Ex Post Facto Clause if the newer Guidelines result in a higher GSR than the version in effect at the time the offense was committed. Peugh v. United States, 569 U.S. 530 (2013).

Even so, in United States v. Pagán-Ferrer, 736 F.3d 573 (1st Cir. 2013), the Court held that application of the one-book and multiple-offense rules to a series of grouped offenses do not violate the Ex Post Facto Clause even if the earlier grouped offenses occurred before an amendment to the manual increasing the GSR for that offense. This was because the one-book and multiple-offense rules placed a defendant on notice that if he committed a closely related offense in the future, his sentence for both offenses would be calculated pursuant to the Guidelines in effect at the time of the later related offense. And every circuit except the Ninth has agreed with Pagán-Ferrer. United States v. Wijegoonaratna, 922 F.3d 983 (9th Cir. 2019).

But in the instant case, Mantha’s 2001 offense was not grouped. Even though the Guidelines Manual states that it is irrelevant whether or not the offenses are grouped, the decision in Pagán-Ferrar was based on the grouping to provide prior sufficient notice to satisfy the Ex Post Facto Clause. Three other circuits have also held that application of the one-book and multiple-offense rules to ungrouped offenses violates the Ex Post Facto Clause. United States v. McMillian, 777 F.3d 444 (7th Cir. 2015); United States v. Saferstein, 673 F.3d 237 (3d Cir. 2012); United States v. Lacefield, 146 F.App’x 15 (6th Cir. 2005). Only the Fifth Circuit, in a pre-Peugh decision, has held to the contrary. United States v. Butler, 429 F.3d 140 (5th Cir. 2005). The Court concluded the district court violated the Ex Post Facto Clause.

The First Circuit rejected the Government’s argument that any error was harmless. Even though the district court had stated it would have imposed the same sentence regardless of which Guidelines Manual was used, the sentence of 196 months was an upward variance from the GSR of the pre-amendment Guidelines Manual. And that required the district court to give specific reasons for its imposition of the sentence. Gall v. United States, 552 U.S. 38 (2007).

Accordingly, the Court vacated the district court’s sentence and remanded for resentencing consistent with the Court’s opinion. See: United States v. Mantha, 944 F.3d 352 (1st Cir. 2019). 

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