United States v. Waseta, 647 F.3d 980

Waseta pleaded guilty to one count of sexual abuse of a minor in Indian Country for acts against his stepson beginning in 1989.
At sentencing, the PSR used the 1988 Guidelines, yielding an adjusted offense level of 14 and a Guidelines range of 15–21 months.
The Guidelines regime was advisory after Booker; the district court upwardly varied to 46 months with three years of supervised release.
Waseta challenged the sentence as a Fifth Amendment ex post facto violation due to the post-Booker advisory regime expanding punishment unrealistically.
The district court rejected a §5K2.8 departure but relied on §3553(a) to justify an upward variance.
On appeal, the government argued the sentence was foreseeable and did not implicate due process; Waseta contends it was utterly unforeseeable.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether advisory Guidelines post-Booker violate due process ex post facto	Waseta argues ex post facto due process violation due to unforeseeable post-Booker sentence.	Waseta contends post-Booker sentence was unforeseen under pre-Booker law and thus unconstitutional.	No due-process violation; sentence foreseeable under pre-Booker framework.
Whether Waseta had fair warning at the time of the crime	Waseta claims no reasonable sentencing outcome could foresee the 46-month sentence.	Government asserts a range of pre-Booker outcomes could include 46 months via departures or enhanced conduct.	Fair warning existed; 46 months was not wildly different from possible pre-Booker outcomes.
Whether Scott controls and forecloses the ex post facto claim	Waseta relies on Scott to show unforessability.	Government argues Scott forecloses the claim by showing foreseeability.	Scott forecloses; the sentence was foreseeable under Scott's framework.
Whether the court could have departed upward under §5K2.0, §5K2.3, or §5K2.8 to reach 46 months	Waseta could have argued departures or uncharged-conduct-based factors justified 46 months.	Government contends departures could have produced a similar sentence, making 46 months foreseeable.	Multiple grounds (e.g., extreme conduct, extreme psychological injury, uncharged conduct) could justify 46 months; not violative of due process.

Portillo-Quezada, 469 F.3d 1345 (10th Cir. 2006) (ex post facto considerations in the due process context; notice and foreseeability)
Cachucha, 484 F.3d 1266 (10th Cir. 2007) (open question about ex post facto with post-Booker sentences above imagined bounds)
Scott, 529 F.3d 1290 (10th Cir. 2008) (foreseeability under pre-Booker guidelines; confirms notice adequate for up to imagined ranges)
Lata, 415 F.3d 110 (1st Cir. 2005) (fair warning; guidance on foreseeability before Booker)
Barton, 455 F.3d 649 (6th Cir. 2006) (due process and notice in ex post facto considerations)
Rogers v. Tennessee, 532 U.S. 451 (S. Ct. 2001) (due process fairness requires notice and foreknowledge in retroactive judicial interpretations)
Begaye, 635 F.3d 456 (10th Cir. 2011) (upward departure based on extreme psychological impact of repeated abuse)
Zamarripa, 905 F.2d 337 (10th Cir. 1990) (upward departure for multiple sexual contacts with the same victim)
Big Medicine, 73 F.3d 994 (10th Cir. 1995) (departure under 5K2.0 based on multi-count analysis and uncharged conduct)