The opinion of the court was delivered by: Paul L. Friedman United States District Judge
On June 20, 2006, David Hossein Safavian was convicted by a jury of three counts of false statements and concealments pursuant to 18 U.S.C. § 1001(a)(1), and one count of obstruction of a GSA-OIG investigation pursuant to 18 U.S.C. § 1505. He was acquitted of one count of obstructing a Senate Committee investigation pursuant to 18 U.S.C. § 1505. The Court denied the defendant's motions for judgment of acquittal and a new trial on September 12, 2006. Thereafter, the parties filed extensive sentencing memoranda.
On October 27, 2006, the Court held a sentencing hearing, at which time the defendant and the government presented various arguments, many of which related to the proper calculation of Mr. Safavian's offense level under the United States Sentencing Guidelines. After considering the parties' arguments, the Sentencing Guidelines, and the applicable law, the Court calculated Mr. Safavian's total offense level under the Guidelines at level 14. It was agreed that he was in Criminal History Category I. Thus, Mr. Safavian's Guideline sentencing range was 15 to 21 months. After considering all the relevant factors under 18 U.S.C. § 3553(a) as the Supreme Court mandated in Booker v. United States, 543 U.S. 220 (2005), the Court sentenced Mr. Safavian to 18 months in prison for the reasons stated in open court. This Opinion further explains the reasoning underlying the Court's calculation of the defendant's offense level.
On Count One of the Indictment, the jury found that "[f]rom on or about March 27, 2003 to in or about May 2003," Mr. Safavian obstructed "the official investigation being conducted by the GSA-OIG into [Mr.] Safavian's participation in an 'international golfing trip provided by lobbyists,'" in violation of 18 U.S.C. § 1505. Amended Indictment ¶ 27; see also Verdict Form at 1. On Count Two of the Indictment, the jury found that "[f]rom in or about May 2002 to in or about August 2002," Mr. Safavian "concealed his assistance to Mr. Abramoff in GSA-related activities" and that he "falsely stated to the GSA ethics officer that Mr. Abramoff did all his work on Capitol Hill, when in truth and fact, Mr. Safavian well knew, prior to the August 2002 Scotland trip that Mr. Abramoff was seeking to lease or purchase GSA-controlled property," in violation of 18 U.S.C. § 1001(a)(1). Verdict Form at 2; see also Amended Indictment ¶ 29. On Count Three of the Indictment, the jury found that "[f]rom on or about March 27, 2003 to in or about May 2003," Mr. Safavian concealed from the GSA-OIG his "assistance to Mr. Abramoff in GSA-related activities," in violation of 18 U.S.C. § 1001(a)(1). Verdict Form at 3; see also Amended Indictment ¶ 31. On Count Five of the Indictment, the jury found that "[f]rom in or about February 2005 to in or about March 2005," Mr. Safavian "falsely stated in a letter to the [Senate] Committee [on Indian Affairs] that Mr. Abramoff did not have any business with GSA at the time Mr. Safavian was invited on the trip to Scotland, when in truth and fact, Mr. Safavian well knew, prior to the August 2002 Scotland trip that Mr. Abramoff was seeking to lease or purchase GSA-controlled property," in violation of 18 U.S.C. § 1001(a)(1). Verdict Form at 4; see also Amended Indictment ¶ 40.
As to Count Four, on which Mr. Safavian was acquitted, the jury found that the government did not prove beyond a reasonable doubt that "[f]rom in or about February 2005 to in or about March 2005," Mr. Safavian obstructed "the inquiry by Senator John McCain, as Chairman of the Senate Committee on Indian Affairs, into allegations of misconduct by lobbyists for Native American tribes." Amended Indictment ¶ 38; see also Verdict Form at 3.
A. Appropriate Edition of Guidelines Manual/Ex Post Facto Concerns
The government argued that the language of Section 1B1.11(b)(3) of the Guidelines requires application of the 2005 edition of the Guidelines Manual because Mr. Safavian was convicted of multiple offenses, the last of which took place in February and March of 2005. Government's Sentencing Memorandum ("Gov't Mem.") at 3.*fn1 The defendant argued that the 2002 Manual should be applied because use of the 2005 Manual would violate the ex post facto clause of the United States Constitution. David H. Safavian's Reply to the Government's Sentencing Memorandum ("Def. Reply") at 14-17.*fn2 Specifically, the defendant argued that he would be disadvantaged by the change in base offense levels between the two editions of the Manual. Id. The base offense level for obstruction would be 12 under the 2002 edition of the Manual, which was the edition in force at the time of the obstruction charged in Count One, between March 27, 2003 and May 2003. See USSG § 2J1.2 (2002). Under the 2005 edition of the Manual, the base offense level would be 14, two levels higher. See USSG § 2J1.2 (2005). This Court agreed with the defendant that use of the 2005 Manual and the accompanying two-level increase in the obstruction base offense level would put Mr. Safavian at a serious disadvantage, in violation of the ex post facto clause of the Constitution. The Court therefore applied the 2002 Manual, and applied it in its entirety under the one-book rule.*fn3
Section 1B1.11(a) of the United States Sentencing Guidelines directs the Court to "use the Guidelines Manual in effect on the date that the defendant is sentenced." USSG § 1B1.11(a) (2005). If, however, use of such Manual would violate the ex post facto clause of the Constitution, the Court must use "the Guidelines Manual in effect on the date that the offense of conviction was committed." USSG § 1B1.11(b)(1) (2005). The Guidelines instruct, however, that "[i]f 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." USSG § 1B1.11(b)(3) (2005). Even though it recognizes that use of the later Manual may result "in an increased penalty for the first offense," the commentary with respect to Section 1B1.11(b)(3) attempts to justify this provision as being consistent with the ex post facto clause by positing an example involving the consideration of "relevant conduct" that occurred before the revision of the Guideline that applies both to the offense of conviction and to relevant conduct for which the defendant was not convicted. USSG § 1B1.11, comment. (backg'd.) (2005). It is significant that the prior "relevant conduct" in the commentary's example involves the same offense as the offense of conviction --an uncharged embezzlement before the revision and a conviction for embezzlement after the revision. The commentary then analogizes that situation to one involving two convictions for embezzlement, one occuring before and one after the revision. Id. The commentary states: "In this example, the ex post facto clause would not bar application of the amended guideline to the first conviction; a contrary conclusion would mean that such defendant was subject to a lower guideline range than if convicted only of the second offense." Id. The commentary's other attempt to justify Section 1B1.11(b)(3) is an example involving two bank robberies, one committed before and one after the revision of a guideline, and the statement that "[u]nder the guideline sentencing system, a single sentencing range is determined based on the defendant's overall conduct, even if there are mulitple counts of conviction." Id.
What the Commission never addresses in the commentary, however, is the case of the habitual embezzler or bank robber who once, years earlier, had trafficked in cocaine, and now finds himself facing a harsher sentence because the offense level for cocaine trafficking -- not the one for embezzlement or bank robbery -- has been increased since his cocaine offense occurred. Yet Section 1B1.11(b)(3) applies equally to this situation as to the ones posited in the examples in the commentary. The commentary's cryptic and curious observations and the examples that accompany them simply are not persuasive in demonstrating that, at least in some cases, Section 1B1.11(b)(3) does not violate the ex post facto clause, as embodied in Section 1B1.11(b)(1). This is particularly true where the earlier and later committed offenses are not similar. Consistent with the duty of this Court and the dictates of the Constitution, the Court must conclude that because Section 1B1.11(b)(1) implicates a constitutional right, it necessarily trumps any other Guideline directives in Section 1B1.11.
Under traditional ex post facto law principles, for the application of a specific statute or Sentencing Guideline to violate the ex post facto clause, the application (1) must be "retrospective," that is, it must "apply to events occurring before [that statute's or that Guideline's] enactment"; and (2) must "disadvantage the offender affected by it." Miller v. Florida, 482 U.S. 423, 430 (1987) (quoting Weaver v. Graham, 450 U.S. 24, 29 (1981)). An application is "retrospective" if it "changes the legal consequences of acts completed before its effective date." Id. A defendant is "disadvantaged" if the new or amended law or Guideline "alter[s] the definition of criminal conduct or increas[es] the punishment for the crime." Lynce v. Mathis, 519 U.S. 433, 441 (1997). Indeed, most ex post facto claims involve increases in punishment. Id. (the "bulk" of ex post facto claims are "claims that the law has inflicted a 'a [sic] greater punishment, than the law annexed to the crime, when committed'") (quoting Calder v. Bull, 3 U.S. 386, 390 (1798)). These principles apply to laws or sentencing Guidelines enacted or amended after a defendant has committed criminal acts if application of the new or amended law or Guideline would make his or her sentence more onerous. See Miller v. Florida, 482 U.S. at 431; United States v. Thomas, 114 F.3d 228, 268 n.19 (D.C. Cir. 1997) (retroactive application of amended Guidelines would violate ex post facto clause); United States v. Lam Kwong-Wan, 924 F.2d 298, 304 (D.C. Cir. 1991) ("if the amendments to the Guidelines effected substantive changes that would adversely affect [a defendant's] sentencing, then they may not be applied retroactively without violating the ex post facto clause of the Constitution"); see also United States v. Maldonado, 242 F.3d 1, 5 (1st Cir. 2001) (when Guidelines have been made more severe in the interim, version in effect at time of crime is used to avoid ex post facto increase in penalty).
Several courts of appeals considered the issue of the constitutionality of Section 1B1.11(b)(3) prior to the Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005). The Third and Ninth Circuits held that Section 1B1.11(b)(3) violated the ex post facto clause. See United States v. Ortland, 109 F.3d at 545-47; United States v. Bertoli, 40 F.3d 1384, 1402-04 (3d Cir. 1994). The First, Fourth, Fifth, Seventh, Eighth, Tenth, and Eleventh Circuits, however, held on various grounds and rationales that Section 1B1.11(b)(3) was constitutional. See United States v. Sullivan, 255 F.3d 1256, 1261-63 (10th Cir. 2001); United States v. Lewis, 235 F.3d 215, 218 (4th Cir. 2000); United States v. Vivit, 214 F.3d 908, 917-19 (7th Cir. 2000); United States v. Kimler, 167 F.3d 889, 895 (5th Cir. 1999); United States v. Bailey, 123 F.3d 1381, 1406-07 (11th Cir. 1997); United States v. Cooper, 35 F.3d 1248, 1250-52 (8th Cir. 1994), cert. granted, judgment vacated 514 U.S. 1094 (1995), opinion reinstated, 63 F.3d 761, 763 (8th Cir. 1995); United States v. Regan, 989 F.2d 44, 48 (1st Cir. 1993). Post-Booker, several circuits have reconsidered the issue and once again upheld the constitutionality and use of Section 1B1.11(b)(3). See United States v. Butler, 429 F.3d 140, 153-54 (5th Cir. 2005); United States v. Foote, 413 F.3d 1240, 1249 n.5 (10th Cir. 2005). Cf. United States v. Demaree, 459 F.3d 791, 795 (7th Cir. 2006) (concluding post-Booker that even though changes to the voluntary, advisory sentencing guidelines are "bound to influence judges' sentencing decisions" and thus fit the Supreme Court's literal definition of an ex post facto clause-prohibited "disadvantage or substantial disadvantage" to the defendant, nevertheless, "the ex post facto clause should apply only to laws and regulations that bind rather than advise") (citations omitted)).
"[T]he central concern of the Ex Post Facto clause is fair notice to the defendant that the punishment for a crime has been increased from what it was when the crime was committed." United States v. Sullivan, 255 F.3d at 1262; see also United States v. Lacefield, 146 Fed. Appx. 15, 22 (6th Cir. 2005). While such notice obviously is constructive, not actual, the directive of Section 1B1.11(b)(3) to use the later edition of the Guidelines whenever a defendant has been convicted of offenses occurring both before and after a revision that increased the offense level after the earlier offense conduct occurs is "in seeming contradiction with its guidance on the Ex Post Facto Clause," United States v. Lacefield, 146 Fed. Appx. at 21, and with the clause itself. The problem is particularly acute when the crime that triggers the increased offense level is in no way similar to the most recent crime committed -- that is, the crime committed after the unrelated Guideline was revised. To penalize a defendant when sentencing him for earlier-committed Crime A (in this case, obstruction) simply because he committed dissimilar Crime B (false statement/concealment) after the Sentencing Commission increased the offense level for Crime A, but not for Crime B, is inconsistent with the principles underlying the proscription against ex post facto application of the law. For this reason, the Sixth Circuit held that Section 1B1.11(b)(3), at least as applied in the case before it, violated the ex post facto clause because the defendant did not have "fair notice . . . that the punishment for [the] crime ha[d] been increased from what it was when the crime was committed." United States v. Lacefield, 146 Fed. Appx. at 22. This Court similarly concluded in this case that use of the 2005 Guidelines Manual would violate the ex post facto clause as applied because, under the grouping rules, the 2005 obstruction guideline base offense level would drive the determination of the total offense level even though the obstruction of which Mr. Safavian was convicted took place in 2003 when the offense level for obstruction was lower.
The effect of using the 2005 Guidelines Manual in Mr. Safavian's case would be retroactively to increase the base offense level for obstruction under Section 2J1.2 of the Guidelines, the most relevant offense level for grouping purposes, because he later committed a dissimilar crime, false statement/concealment as charged in Count Five.*fn4 The base offense level for obstruction was increased by an amendment to the obstruction Guideline in November 2003 -- from 12 to 14 -- but the obstruction of which the defendant was convicted under Count One took place from March 27, 2003 to May 2003 (when the 2002 Manual was still in effect). Compare USSG § 2J1.2 (2002) with USSG § 2J1.2 (2005). Under the grouping rules the total offense level for the four offenses of which Mr. Safavian was convicted would be driven by the 2003 obstruction conviction under either edition of the Manual, because the obstruction base offense level is higher than the false statements base offense level (which has always been 6). But to apply the 2005 edition of the Manual, which revised the obstruction guideline range, would be contrary to the underlying rationale of the ex post facto clause. Not only did Mr. Safavian commit the obstruction offense prior to the amendment revising Section 2J1.2, and increasing the base offense level for obstruction, he was not found by the jury to have repeated the offense of obstruction at any time after the revision took effect. Thus, it cannot even be said that he was on fair notice that he risked an increased Guideline calculation using an increased obstruction base offense level under the later Guidelines Manual, as one could argue is true for a person who continues to commit the same offense again after such a revision. See United States v. Sullivan, 255 F.3d at 1261 ("a defendant knows, when he continues to commit related crimes, that he risks sentencing for all of his offenses under the latest, amended Sentencing Guidelines Manual"); id. at 1263 (the grouping rules may "provide warning to criminals that completing another criminal offense similar to one committed previously places them in peril of sentencing under a revised version of the Guidelines") (quoting United States v. Vivit, 214 F.3d at 919). To apply the revised Guideline would violate the ex post facto clause because it places Mr. Safavian at a disadvantage under the Guidelines without providing fair warning.
Post-Booker, the Sentencing Guidelines are advisory, not mandatory. The Court must consider multiple factors, including the "nature and circumstances of the offense[s]" and "the need for the sentence imposed to reflect the seriousness of the offense[s] . . . and to provide just punishment for the offense[s]." 18 U.S.C. § 3553(a)(1); § 3553(a)(2)(A). Thus, even if Section 1B1.11(b)(3) were not itself unconstitutional, ex post facto considerations such as those just discussed clearly can inform the Court's discretion in considering the Guidelines, and whether the Guideline range for this individual defendant properly reflects the nature and circumstances of his offenses, the seriousness of those offenses, and what sentence would constitute just punishment for those offenses. The punishment must be "sufficient, but not greater than necessary" to comply with these purposes, and all others listed in 18 U.S.C. § 3553(a). In this case, not only does Section 1B1.11(b)(3) fail to give fair warning or constructive notice, its operation simply is unfair to this defendant, who was in fact acquitted of an obstruction of justice he was charged with having committed after the obstruction Guideline was increased. An ...