United States v. Robert Welch
2012 U.S. App. LEXIS 15963
| 6th Cir. | 2012Background
- Counterfeiting scheme: bleaching genuine $5 notes and printing higher denominations; used with a copier to produce $50 and $100 notes.
- Offense conduct during Feb 14–Jun 10, 2009; involved in Ohio, later arrested in Arizona on June 22, 2009.
- Arizona state convictions: five counts of forgery, Feb 19, 2010; sentences run concurrently with another drug offense.
- Federal charges: pleaded guilty March 30, 2010 to four counts; August 5, 2010 federal sentence in Northern District of Ohio.
- District court used 2009 § 2B5.1 for offense level, after Amendment 731 became effective Nov 1, 2009; potential Ex Post Facto issue.
- Court remands for resentencing after determining Ex Post Facto violation and considers 5G1.3(b) concurrency question
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ex Post Facto: applicability of § 2B5.1 as of Nov 1, 2009 | Welch argues amendments 731 added harsher penalty post-offense; violates Ex Post Facto | Government claims amendment clarifies preexisting intent; not punitive | Ex Post Facto violation; remand for resentencing |
| Concurrency with undischarged Arizona sentence under § 5G1.3 | Welch seeks full concurrent sentencing | § 5G1.3(b) does not mandate full concurrency; district court discretionary | § 5G1.3(b) not violated; district court to determine reasonable punishment on remand |
Key Cases Cited
- United States v. Duane, 533 F.3d 441 (6th Cir. 2008) (ex post facto review framework; apply guidelines in place at sentencing unless cruel or unusual)
- United States v. Kussmaul, 987 F.2d 345 (6th Cir. 1993) (control of guideline application timing for pre/post amendments)
- Miller v. Florida, 482 U.S. 423 (1987) (ex post facto analysis based on change in primary offense points)
- United States v. Parks, 583 F.3d 923 (6th Cir. 2009) (rule of lenity applied to ambiguous guideline interpretations)
- United States v. Watford, 468 F.3d 891 (6th Cir. 2006) (concurrency considerations under § 5G1.3(c))
- United States v. Dison, 384 F.3d 922 (7th Cir. 2004) (ambiguous sentencing guidelines; lenity applied in pre-Amendment context)
- United States v. Schreckengost, 384 F.3d 922 (7th Cir. 2004) (ambiguous guideline application for altered currency)
- United States v. Inclema, 363 F.3d 1177 (11th Cir. 2004) (ambiguity in section 2B5.1/2B1.1 applications)