United States v. Randall Fletcher, Jr.
2014 U.S. App. LEXIS 15714
| 7th Cir. | 2014Background
- Fletcher pled guilty to five federal counts (production, receipt, possession of child pornography) based on materials spanning 2002–2009; some images were of his then-seven-year-old daughter.
- Electronic media seized in 2002 were not forensically examined until 2009; additional materials (2004–2009) were found later, prompting a superseding indictment.
- The district court applied the November 1, 2011 Sentencing Guidelines (the 2011 Guidelines) to all counts, producing an adjusted offense level capped at 43 and a guidelines range of life, which the court reduced to 360 months (statutory maxima constrained some counts).
- Fletcher appealed, arguing the use of the 2011 Guidelines for pre-amendment conduct violated the Ex Post Facto Clause because earlier guideline editions (2001/2004) were less severe.
- The district court grouped Counts II–V (which straddled the guideline amendment) but did not group Count I (the 2002 production count); the government conceded Vivit doesn’t control Count I.
- The Seventh Circuit concluded the grouping/application to Counts II–V was proper under the one-book rule, and any error applying the 2011 Guidelines to Count I was harmless because statutory maxima produced the same effective sentence.
Issues
| Issue | Plaintiff's Argument (Fletcher) | Defendant's Argument (United States) | Held |
|---|---|---|---|
| Whether applying 2011 Guidelines to pre-amendment conduct violates Ex Post Facto | Use of the harsher 2011 Guidelines for 2002 conduct increased his sentencing exposure in violation of the Ex Post Facto Clause | Advisory Guidelines may be applied at sentencing; grouping/one-book rule supplies notice for counts that span amendment | Application to Counts II–V that straddled the amendment did not violate Ex Post Facto (one-book rule + grouping) |
| Legality of using later Guidelines for grouped counts that span amendment | (implicit) grouped counts should use the version in effect when offense occurred | One-book rule (§1B1.11(b)(3)) requires applying revised edition to both offenses when counts straddle amendment; grouping gives notice | Grouping Counts II–V and applying 2011 Guidelines was proper; no ex post facto problem for grouped counts |
| Use of later Guidelines for an ungrouped pre-amendment count (Count I) | Applying 2011 Guidelines to Count I (2002 production) violated Ex Post Facto because no grouping notice | Any error is harmless because statutory maxima constrained the sentence regardless of which Guidelines version applied | Any error in calculating Count I under 2011 Guidelines was harmless; no resentencing required |
| Whether error affected district court's sentence selection (harmlessness) | The miscalculation could have affected the guideline starting point and sentence | Statutory maximums reduced guideline ranges such that sentencing outcome would be the same under earlier guidelines | Harmless error: statutory caps produced the same effective range (240 months for Count I; aggregate caps for others), so no effect on chosen sentence |
Key Cases Cited
- United States v. Peugh, 133 S. Ct. 2072 (2013) (retrospective guideline increases can create an ex post facto violation because Guidelines inform sentencing)
- United States v. Vivit, 214 F.3d 908 (7th Cir. 2000) (grouping rules plus one-book rule can provide notice that amended Guidelines will apply to offenses that continue after amendment)
- United States v. Demaree, 459 F.3d 791 (7th Cir. 2006) (held advisory nature of Guidelines avoided ex post facto issue; later overruled by Peugh)
- United States v. Vallone, 752 F.3d 690 (7th Cir. 2014) (confirmed Vivit reasoning survives Peugh for grouped counts)