United States v. Everett D. Seacott

estate, pay improvements, for home and ENGEL,* real and Before COFFEY purchase automobiles. The loan documents EASTERBROOK, Judges. Circuit also claimed that the loans were secured COFFEY, Judge. Circuit they being purchase. assets were used to money was not used for the pled guilty to one count The loaned Everett D. Seacott purposes in the loan documentation. willfully misapplying bank funds in viola- stated Instead, money operating as § Pursuant used tion of 18 U.S.C. 657. Bar, pay off loans the capital for the Glass Guidelines (“U.S.S.G.” “Guidelines”), initially borrowers had obtained to the district named Bar, provide and to reim- sentencing range appli- funds for the Glass court ruled $1,400 roughly of the impris- months of burse to Seacott cable to Seacott was 15-21 personally to Nichols and departed court then amount he had lent onment. The district range Bar. from the Glass downward * by designation. Appeals, sitting Engel, Court Albert J. of the Sixth Cir- cuit The Honorable Proceedings sentencing District try

B. Court this case .... is to provide for the restitution the victim ...” pled guilty to count of violat- Seaeott one so that the sentence will be the “most benefi- ing 18 U.S.C. 657 in connection with the victim, cial to the the defendant and the misapplication Lampeo funds. The taxpayers.” The court then announced that Department, using Probation the 1990 ver- Seaeott would serve four months in the cus- Guidelines, sion of the arrived at Seacott’s tody of the Bureaus of Prisons in a work adjusted by starting offense level with a base release center and “be allowed to leave the four, 2Bl.l(a); offense level U.S.S.G. facility purposes only. for work Four adding eight levels because the loss to the spent months shall be under home detention $70,000 (Lampeo) victim was between supervised as a condition of release.” The $120,000, (b)(l)(I); adding 2B1.1 court pay also ordered the defendant to resti- two levels because the offense involved more tution for by Lampeo. the net loss suffered planning, minimal U.S.S.G. Seaeott, After the court sentenced the Gov- 2Bl.l(b)(5); adding two levels because the prosecutor ernment asked the court whether trust, position public defendant abused a it had “announee[d] what the [Guidelines] 3B1.3; subtracting U.S.S.G. and two levels subsequent your offense level was down- accepted responsibili- because the defendant departure.” ward crime, responded, The court “if ty for his 3E1.1. The de- Department the Probation can tell me adjusted 14, what fendant’s offense level was thus quantum departure I I, need to show to history category and with a criminal sentence, reflect this I’ll do it. The sentence imprisonment Guidelines dictated for 15-21 is the colloquy among sentence.” After a Department months. The Probation advised prosecutor, .attorney, probation defense and departure the district court that a officer, range the court Guidelines was not determined that it would warranted. four downward levels to level 10 in At sentencing hearing, the district order to reach the previously sentence it had accepted Department’s the Probation imposed. adjusted calculation of the defendant’s base agreed applicable offense level and that the Analysis II. range Guidelines was 15-21 impris- months court, however, onment. The district ruled Applicable A. The that a downward from the Guide- range appropriate lines in question Seacott’s case The first we address is First, for two reasons. was not moti- applicable Seaeott which version of the Guidelines is by gain” misapplying Lampco’s vated “self to the defendant. This issue was not raised money, by but by party, given rather a desire that one of potential impor either but its Lampco’s debtors, Bar, requested supple business the Glass tance to the defendant we support not default on In briefing parties.1 its loan. of this mental from both When an Seacptt ruling, the court party, “did not issue is not found raised our review is personally by any plain benefit transac- these limited to error. “Plain errors or de everything tions ... affecting rights may he did with fects no substantial respect preserve although they to these loans were done to brought ticed were not to the customer/employer 52(b); his keep status and to attention of the court.” Fed.R.Crim.P. 1218, loan afloat so if Kopshever, economic conditions v. United States 6 F.3d (7th Cir.1993) fact, ... employer, recovered that his (although post ex facto good problem would make on these loans.” sentencing, gravi at “the raised departing ty court’s second reason for down- of the constitutional concerns” warranted objective primary addressing ward was its view that “the the issue for the first time on 18, 1993, 1. In an order dated October we direct- tion but maintained it did not rise to the level of plain parties supplemental briefing preju- significantly ed the to submit error because it was not defendant, however, application argued whether of the 1990 dicial. The that the post problem post plain Guidelines created an ex facto ex facto violation constituted error did, plain govern- readily if it whether it was error. The because the error was certain and cor- post ment conceded there was an ex facto viola- rectable. provision operates to the Belanger, offense if the new v. 936 F.2d appeal); United States Cir.1991) (remand (7th 916, compelled detriment of the defendant.” United (7th Harris, sponte a sentenc sua 994 F.2d 416 n. 9 Cir. after court discovered v. Wilson, 1993). Schnell, error); ing States v. United 982 F.2d United States cf. Cir.1992) (7th (vacating (7th de Cir.1992), representative F.2d 627-28 lists post the basis of ex fendant’s sentence on holding so from each of the other elev eases for the first time violation raised Many of our cases have stated en circuits. facto brief). reply See, e.g., proposition dicta. (7th Willey, States v. 985 F.2d con Contrary the contention of the Cir.1993); Foutris, United States taken a “detour” currence that we have Cir.1992); United States v. in search of “roving” through the record (7th Cir.1992). Golden, 1413, 1417 error, judicial merely exercising dis we are v, Wilson, Compare harm that rectify a constitutional cretion to (7th Cir.1992) (invalidating 627-28 on ex recognized previously all other circuits have grounds application facto the retroactive upon to correct. the instant and acted of a criminal statute amended to the detri defendant, only harm not case the of the defendant after the commission ment Seacott, justice system to the criminal as but offense). whole, i.e., by preventing prospect the of a serving prison future defendants extra time post This court addressed the ex facto system) (reducing overcrowding prison in our recently question most in United States v. litiga by curbing as needless future as well “[ejxcept Kopshever, in which we stated for a tion on this issue. The concurrence further suggestion by way dictum in one of our of (18 the U.S.C. maintains that because statute Bader, opinions [United States 3553(a)(4)) screechingly “is not unconstitu (7th Cir.1992) ], it has been univer- passing judg tional” we should refrain from sally that the held Commis- on it. we have been unable to ment While to increase the sion amends the Guidelines newly any legal precedent discover for the severity Facto punishment, of a the Ex Post “screechingly doc created unconstitutional” application prohibits of the amended Clause trine, receiving supple that after we do know performed the Guidelines to crimes before subject briefing on the from both mental Kopshever, amendment’s date....” effective (in parties response concurring judge’s to the resolving at 1222. than the ex Rather request post that we not address the ex facto post problem, Kopshever, facto remanded the problem briefing further from the without issue to the district court because the record confidently parties), say that retroac we can undeveloped, government the had con- sentencing application tive of a harsher a and the ceded there was violation issue guideline very purpose contravenes the' may have moot. Id. at 1222-23 & n. 6. been Finally, Ex Facto the con the Post Clause. post expresses currence concern that the ex Kopshever, in one of our As mentioned judg “matter[] facto issue does not suggested in dicta that retroactive cases has argument fail ment.” We to understand this application which amendments anyone for we are unaware of who would disadvantage not the defendant does violate hour of maintain that even one additional Ex the Post Facto Clause. United States v. confinement, day much less a or week of (7th Bader, Cir.1992). The confinement, “does not matter.” Florida, that Bader dicta conceded Miller L.Ed.2d 351 rule, general As a a district court must (1987) sentencing guidelines may that “shows a based on the sentence defendant purposes post be ‘laws’ for of the ex facto sentencing. on date of effect 3553(a)(4). argued “it However, clause” but remains to deter- recent- U.S.C. as we noted, changed, mine how the laws have and wheth- ly “every except circuit our own has change particular exceeds the consti- Ex Post er held Facto Clause Bader, prohibits application guide- a tutional constraint.” 956 F.2d at 709. Constitution argued that provision lines not in effect on the date of the Bader then a required impose is sentence that the ex court guidelines influence “[a]lthough the statutory statutory applicable within the is both between the of discretion ercise appropriate may depart at range, judges and within the Guide- minimum/maximum change understanding, a line-generated times. On minimum/maximum. is no different sentencing guidelines case, truly atypical “In a a district court from, get-tough say, institution of a guide- permitted to is long no prosecutor policy under which Although .... a court has discretion lines offenses, guilty pleas to lesser accepts er grant deny or once a suffi- judge who appointment of a new or the present, ciently circumstance is unusual sentences, change in the longer or favors appellate ... scrutinize such deci- courts parole, see Prater v. U.S. guidelines for that the factors relied on sions insure Commission, F.2d 948 Cir. Parole already truly degree of a kind or not are 1986) (in bane), Presi or a decision rejected by [Sentencing] considered commuting the sentences dent to cease Thus the district Commission.... may All of these increase a class of felons. ability to exercise discretion be- has no prison with spends a criminal the time power firmly its controlled cause post facto transgressing the ban ex out [18 conclude that U.S.C. Commission. We laws.” 3358(b) (authorizing departures)] does Bader pointed As out Id. at 709. give degree courts the of dis- district dicta, parole guide- in Prater we held that ignore sufficient cretion to subject to the ex facto lines are not laws prevent the obvious conclusion that the clause, a conclu- holding rested on but that defendants’ sentences.” guidelines dictate parole guidelines served an sion Bell, F.2d at 1450. legislative” func- “interpretive rather post clause to Applying the ex facto Prater, parole F.2d at 954. The tion. 802 is consis Guideline amendments explained, “are not the exer- guidelines, we opinion in Supreme Court’s tent with the authority (e.g., to make delegated cise Florida, 423, 107 v. S.Ct. Miller they are statements of procedure); rules of (1987), 2446, in which it con They ‘merely ... policy. are enforcement post facto clause connection sidered the ex may discard- guides, guides and not laws: be sentencing guidelines. At the Florida’s with may require; laws circumstances ed where ” petitioner in Miller committed the time the (citation omitted). pa- the Under not.’ Id. convicted, Florida’s he was crime for which granting parole” re- guidelines, role “the sentencing guidelines would have resulted “discretion of the mained in the exclusive 3]/¿ years’ 4$ presumptive sentence of a (citation omitted). Commission].” Id. [Parole time he was sen imprisonment, but at the parole guide- analogy the Bader’s between a guidelines called for the revised tenced (and examples gives it the other lines years in to 7 presumptive sentence of changes can a defendant’s sen- which effect The 107 at 2448. prison. Id. at S.Ct. tence) sentencing guidelines is un- and the guidelines in applied the Florida trial court sentencing guidelines persuasive because imposed sentencing and at the time of effect sentencing tightly control the discretion Supreme 7-year Id. The Court a sentence. recently ex- Eighth Circuit courts. As the inwas petitioner’s sentence Bell, held that plained in United States Id. at post facto clause. (8th Cir.1993): violation of the ex 1445 435-36, at 2453-54. The Court 107 S.Ct. impose “Sentencing courts must sentences post the ex “to fall within explained that Sen- [United with the consistent must two critical elements prohibition, facto Guidelines; merely they not a tencing] are first, retrospec the law ‘must be present: sentencing to be considered factor occurring tive, is, apply to events it must sense, the Guidelines court.... In this enactment’; second, ‘it must case) its (in before typical additional represent a by it.’” disadvantage the offender affected super- that are mínimums and máximums (citation omit at 2451 Id. at and máxi- mínimums imposed over the ted). amended held that The Court statutorily by Congress; a enacted mums 1386 increasing $78,572 petitioner’s involving sen crime a loss of became 1, 1989,

tence contained both critical elements since effective November after Seacott implicated by ex facto concerns are committed his crime but before his sentence “[ejvery changes punishment, U.S.S.G., law that imposed. App. C at C.51-52 greater punishment, inflicts a than the law Under 1990 Guidelines Seacott’s crime, adjusted annexed when committed.” higher offense level is one level Miller, (fourteen 482 U.S. at S.Ct. at 2450 under the 1988 Guidelines rather Bull, 386, 390, thirteen). (quoting Therefore, Calder v. 3 Dall. 1 than the 1988 Guide- (1798)). lines, reasoning L.Ed. 648 The of Miller those in effect when Seacott committed directly applicable crime, to the federal sentenc applicable his are to him. With an ing guidelines, substantially which are similar offense level of thirteen a and criminal histo- join I, ry to Florida’s. We thus all of our sister category of sentencing the Guidelines in holding guideline months, circuits that a amend range applicable to Seacott is 12-18 ment which occurs after commission of not 15-21 months. crime which works to the defendant’s inapplicable

defendant’s detriment is because Departure B. The Downward it is violation of the a Ex Post Facto Clause. ^[5] District courts must impose sentences applicable within range Guidelines unless only remaining question is The aggrava- the court “finds there exists an application whether the trial court’s ting mitigating kind, or a circumstance of plain light 1990 Guidelines was error. o f degree, Miller, adequately to a 2446; taken into consid- Kop eration ... shever, 1218; that should Willey, 985 F.2d 1342 Wilson, result a sentence different from that de- F.2d as well as the fact 3553(b); scribed.” see U.S.C. also each of the other circuits has deter 5K2.0, p.s.; Fra- application mined that retroactive of amend zier, Cir.1992). guidelines resulting ed in stiffer sentences applies three-step approach This court Clause, violates the Ex Post Facto we are of reviewing sentencing court’s opinion plain that it was error for the (1) applicable range: we sentencing apply court to the 1990 Guidelines review de novo whether a district court’s rather than the prejudice version. grounds departure may stated for be relied to the defendant is clear as the 1990 Guide (2) upon justify departure; to the we review poten lines resulted in a sentence that was for clear support error whether the facts that tially longer three months than under the grounds departure actually the for Olano, exist in 1988 Guidelines. See United — (3) case; deferentially the and we -,-, review degree 1777-78, (1993) appropri- whether the is (“plain er- 1349; Willey, ate. 985 F.2d at ror” “prejudicial”). must be “clear” and Boula, (7th Cir.1991). case, In applied the district court the Guidelines in effect when the defendant was 1. The Motive Behind the Crime October, sentenced in 1991. As we stated above, under that version begin by of the Guidelines reviewing We de novo the the grounds defendant’s base offense level was in- departing district court’s for down eight creased levels because the loss involved ward four applicable levels from the Guide $78,572. 2Bl.l(b)(l)(I) cited, § was range. U.S.S.G. lines The court aas basis for (1990). However, departure, the Guidelines in effect its its view that Seacott was not by Seacott committed his crime in “self-gain” misapplying 1988 motivated in early provided and Lampco’s money, that an in- by offense but rather a desire to $50,001 $100,- volving borrowers, Lampco’s loss of between see one of the Glass triggered Bar, a seven level financially increase the remain viable. The district 2Bl.l(b)(l)(H) § base offense level. U.S.S.G. court reasoned that the framers the Guide increasing eight The possibili amendment lines had not taken into account the adjustment applicable ty the offense level misapply to a that a defendant would funds in an indicator of both the harm to his cause it is § for other than of 18 U.S.C. violation interests, defendant,” therefore gain and that pecuniary the victim and the own comment, ap- punishment the overstated 2B1.1, the Guidelines (backg’d).3 § U.S.S.G. insuf- legally This is a to Seacott. propriate that this is evidence the Seacott claims from the downward ficient reason Guidelines assumed framers the range.2 drafters applicable Guidelines every § 2B1.1 crime there would harm numerous demonstrated of the Guidelines gain victim as well as to the defendant. the thought appropriate it they times that when here, lacking Seacott Because the latter adjust based on whether a sentence argues, properly departed the district motive, they profit acted with defendant applicable sentencing downward that fac- courts to consider explicitly directed language range. disagree. The Seacott We See, (Transporta- § e.g., 2G1.1 tor. U.S.S.G. commentary cites from the demonstrates Pro- Purpose or for the of Prostitution tion crafting § 2B1.1 framers of the that in comment, (n. 1) Conduct), Sexual hibited considered, factors, among other (“The assumes base offense level gain harm to the victim and to the defendant. profit. was committed for offense they believed best The formulation reflected did not infrequent case where the defendant considerations was one based the offense these and other profit for the offense commit coercion, (“value physical or property involve force explicitly did on “loss” depar- a downward Commission recommends taken, damaged destroyed”): or under 2H3.1(b)(l) levels.”); § U.S.S.G. ture of loss, 2B1.1, longer § greater or Eaves- (Interception of Communications district court’s focus on prison term. The (“If conduct was purpose dropping) profit motive in this lack of a the defendant’s ad- commercial to obtain direct or indirect in direct contravention to case was thus by gain not vantage or economic covered on to sentence based Guidelines’ command 2H3.1(a)(2) above, increase § U.S.S.G. loss. 2H3.2(b)(l) (Manufac- levels.”); § U.S.S.G. Advertising, Possess- turing, Distributing, surprising that the Guidelines It is not (“If Device) the of- Eavesdropping ing an courts to sentence direct district defendants gain, in- pecuniary for fense committed of crimes like Seacott’s based convicted levels”); U.S.S.G. by 3 see also crease take, property they the value of rather 2L2.1(b)(l); 2Ll.l(b)(l); U.S.S.G. taking motive for it. Persons than on their 2L2.3(b)(l). frequency Given the authority financial positions at institu- the drafters of the Guidelines with which sums of with vast other tions are entrusted adjusted based on specifically offense levels money. little difference people’s It makes was motivated the defendant whether managers ille- these financial their victims if they that had been profit, we must assume themselves, to third gally transfer funds adjust- an providing such interested up money in the they pile if parties, or crimes, they have § 2B1.1 ment for would of The same amount parking lot burn it. done so. victim no money taken from the has been support the com- claims to find in Seacott The aim fate of the funds. matter what the court’s mentary §to 2B1.1 for the district in area is to law this deter of the criminal a profit a as on his lack of motive reliance any reason. The misapplication of funds for departure. Specifically, he grounds for recognizes this 2B1.1 language of Section commentary to language in the points to length the defen- reality by making the of provides “value of § which 2B1.1 on the a based prison term variable dant’s in important role property plays an taken offenses, he takes. property amount of theft be- determining sentences for purely below, misapplied to aid the the funds Glass he we believe the district 2. As make clear we found that committed clear error it Bar. any con- crime committed his without Seacott cern for his own er, Howev- economic self-interest. of commentary as "the defines “loss” value 3. The legal purposes determining suffi- of for taken, destroyed.” damaged, or property alleged basing departure self- ciency a on the of comment, 2B1.1, (n. 2). § motives, we assume that of Seacott’s will lessness Moreover, prior adjudication as guilt. we stated footnote victim his of two, agreed even if we with the district court We based our conclusion on the fact that misapplying that the defendant’s motive explicitly restitution was considered departure, a the funds merits downward we in determining Guidelines as a factor wheth- would still reverse the defendant’s sentence er a defendant was entitled to a two-level because the district court committed clear acceptance responsibility reduction for un- comment, finding entirely error in that Seacott acted (n. 1(b)). § der U.S.S.G. 3E1.1 Id. any self-gain. without motive of In order § Commentary 3E1.1 “demonstrates offset some of the losses he incurred when he adequately that the Commission considered money loaned his own to Nichols and the mitigating restitution as a circumstance when Bar, rough Glass Seacott diverted to himself Guidelines,” formulating the id. at $1,400 ly Lampeo funds he fraudulent it appropriate ground therefore is not an for ly approved as loans. At least this trans 3553(b) departure. (depar- See 18 U.S.C. action, misapplying Lampco’s Seacott permissible only tures are when “there exists money just Bar, not to aid the Glass but to an aggravating mitigating circumstance of limit from personal his own losses loans kind, degree, a or to a adequately taken improvidently Moreover, he had made. guidelines”). into consideration ... may attempting Seacott have been keep case, Carey, the instant unlike the Glass Bar afloat in order to avoid the district court did not reward Seacott for delinquency of super one of the loans he was making Lampeo prior restitution to to his vising, protecting reputation thus his at adjudication guilt. Instead, the court re Lampeo. pecuniary Seaeott’s own interest give duced Seacott’s sentence order to him play part thus did in fact in his commission opportunity “the full make restitution” to his crime. Lampeo and minimize “the cost to the tax if, payers.” Carey, But under

2. Restitution to district court the Victim depart cannot downward aas reward for The second reason the district court victim, restitution made to the it would make gave departing for downward from the little sense to hold that may district courts sentencing range imple was to promise downward based on the ment what “primary the court termed its Moreover, restitution. as the Sixth future [sentencing] objective” ensuring that Sea- reasoned, Circuit has “it seems that the Sen Lampeo. cott could make restitution to Un tencing including Commission considered 3553(a)(7), sentencing der 18 U.S.C. courts ability possible to make restitution as a miti provide are directed to consider “the need to circumstance, gating yet rejected it as a basis any restitution to victims of the offense.” guidelines” by explic provision We have held that this is a factor itly stating that socio-economic status is not may that the district court consider in sen relevant in the determination of a sentence. tencing the defendant within the Guidelines 5H1.10, p.s. See U.S.S.G. Franz, range. United States v. 886 F.2d Cir.1991). Harpst, (7th Cir.1989); 979 n. 7 United States v. permitting greater leniency “[A] rule in sen Barber, (7th Cir.1989), 351 n. 3 tencing in those cases in which restitution is denied, 922, 110 1956, 109 cert. meaningful at issue possibility and is a ... (1990); L.Ed.2d 318 see also United States v. would, believe, we nurture the unfortunate Bolden, (4th Cir.1989). practice disparate of sentencing based on question here is whether restitution is a status, socio-economic which the Guidelines proper ground justify to be considered to supplant.” were intended to Id. at 863. The departing downward from the Guidelines framers of the Guidelines stated that range. ground departure We review this for Willey, de novo. 985 F.2d at 1349. In [pre-Guidelines] sentencing prac “[u]nder Unit (7th 318, tice, ed Carey, States v. 323 probation courts to an sentence[d] Cir.1990), sentencing we held that a inappropriately high percentage of offend could not departure guilty crimes, base a downward on the ers of certain economic such theft, evasion, fact that a offenses, defendant made restitution to his as tax antitrust

1389 — (7th denied, -, embezzlement, Cir.), fraud, 112 cert. U.S. trading, insider (1991). 171, In are ‘serious’. 116 L.Ed.2d 134 de view S.Ct. that in the Commission’s Guidelines, to permit parting to courts from the district courts guidelines were If the many prison in instead of must impose probation cases, ... would sentences or all such methodology “employ the rationale and The Commis- to be ineffective. continue considering cases not problem has been to to this sion’s solution adequately by existing guide- addressed classify as ‘serious’ guidelines that write sentencing judge thus lines. The is re- (and mandatory prison subject to therefore jus- quired specific factors to articulate the sentences) proba- many offenses for which tifying departure and to the extent of his frequently given.” is now tion adjust by utilizing the defendant’s sentence A.4(d), Al pp. 1.8-1.9. Ch. 1. Pt. process quantifies an incremental

lowing sentencing courts to downward impact of the factors considered ability to make resti on a defendant’s based court on the defendant’s sentence.” guide the intent of the tution would thwart “Significant departures Id. at 531. through punish financial crimes lines to —those explained more than two levels—must be imprisonment by allowing those who terms excep- with a care commensurate with their prison. also pay escape It would could Muzika, quality.” v. tional United States system where the create an unconstitutional (7th Cir.1993) 1050, (quoting 1054 buy way out of in effect their rich could 531). case, Thomas, 930 F.2d at Georgia, prison sentences. See Bearden 2072-73, sentencing transcript reveals that the district 660, 672-73, 103 S.Ct. 461 U.S. (1983) (“To court concluded that the defendant should deprive ... 76 L.Ed.2d any prison, not serve time in and then de- simply probationer of his conditional freedom own, because, parted downward four levels to achieve that through no fault of his he contrary clear such a method pay the ... would be result. Thomas makes cannot fine required by departing, completely untethered to the fundamental fairness Short, Amendment.”); structure, methodology Tate v. rationale or of the Fourteenth Guidelines, guide- impermissible. is “The (1971) (violation equal protection de- lines must be used as a reference when Eiselt, punishment payment of a clause to limit F.2d parting.” United States v. Cir.1993). pay who are able to it but to fine for those imprisonment the fine to for those convert Thus, ability to pay). a defendant’s unable III. Conclusion grounds make is not for a down restitution in this case makes clear The record

ward under the Guidelines. See that defen the district court was of the belief Bolden, also States v. punished not should be dants like Seacott (4th Cir.1989) (“[W]e think do not 1340-41 terms, by ordering them to prison but with desirability attempting economic victims money pay restitution to the earn job as to enable preserve so [defendant’s] may be a of their financial crimes. This him warrants a down to make restitution approach, but it is not the law. De sensible adjustment guidelines”). ward policies partures must “be based on found Departure 3. Method of rather than themselves sentencing philosophy of given personal penal Even had the district court Newman, F.2d judge.” departing reasons considered to be valid — denied, (7th Cir.), cert. range, we downward from the Guidelines -, 470, 121 L.Ed.2d defendant’s sentence would still vacate the departure in this case the downward in which the court Because because of the manner of the Guide inconsistent with the dictates “Departures, arrived at Seacott’s sentence. lines, downward, sentence and Seacott’s upward must be we VACATE whether or the district court for resentenc- guidelines.” REMAND to linked to the structure of the 526, Thomas, opinion. this ing 530 consistent with v. 930 F.2d 1390

EASTERBROOK, 411, 416, 820, 824, Judge, Circuit 96 S.Ct. 46 L.Ed.2d 598 52(b). concurring. (1976) precludes “ appeal an to Rule — 52(b) synonymous' [in ] ‘Plain’ Rule is with imposed The court a sentence be- district or, equivalently, ‘clear’ ‘obvious.’” United range prescribed low the — Olano, -, -, States v. U.S. Guidelines, took an and the United States 1770, 1777, appeal. only question presented is the Caputo, v. See United States 978 F.2d departing propriety of for the reasons the (7th Cir.1992) (an “plain” only error is if gave. opinion court Part II.B of the court’s gravely prejudicial and obvious retro approach shows that the district court’s con- 3553(a)(4) spect). sereechingly Section is not flicts with the text and of the structure A unconstitutional. series of decisions in this join guidelines. portion opinion I of the expressed divergent circuit has views about judgment remanding and the the case for subject postponed decision to a case resentencing. subject fully in which the briefed and way questions parties On the to the outcome, approach controls the not the one debated, majority have takes a detour. expect would if the statute were some consti Raising question on its own initiative the pariah. E.g., tutional Kop United States v. (cid:127) 3553(a)(4), whether 18 U.S.C. which re- shever, Cir.1993); 1221-23 quires guidelines the court to use the in force Schnell, United States v. 218- sentencing, at the time of violates the ex (7th Cir.1992); Bader, Constitution, majority facto clause of the (7th Cir.1992). Indeed, join “holds” that it I does. do not many common thread of the cases in this dicta, question in obiter exercise for the noting question circuit is that it is not not raised the district court or this one 3553(a)(4). plain error to follow That is pertinent disposition and is not to the why panels other reserved decision. The one case. thing these cases can be said to hold is that Appellate judges possess roving do not question this constitutional should be de opinions discretion to deliver on issues that fully cided until it has been briefed and mat background eases, lurk in the but that the judgment. ters to the parties present themselves do not for deci- system; judges sion. Ours is an adversarial Even obvious errors do not lead to auto opinions explain write their resolution of Only matic condemnation. pro an error that disputes, generate concrete not to law in the miscarriage justice supports duces a an Helms, abstract. Hewitt v. 482 U.S. 52(b). invocation of Rule That means an 761-63, 2672, 2676-77, 107 S.Ct. 96 L.Ed.2d fairness, “seriously a£fect[ing] error in (1987); Repression Alliance to End tegrity public reputation judicial pro (7th Cir.1987). Chicago, 820 F.2d Atkinson, ceedings.” United States v. main, questions we must be mum about 157, 160, 391, 392, U.S. 80 L.Ed. 555 parties neglect to address. — (1936), Olano, at -, followed in In criminal cases the sole source of majority author- 113 S.Ct. at 1779. For all the tells ity non-jurisdietional us, to decide issues that the the choice between the 1988 and 1991 parties preserved have not the district versions of the had no effect on sentence, appellate and raised their may explain why briefs is Seacott’s which 52(b): parties subject Fed.R.Crim.P. “Plain errors or paid de- despite no heed affecting fects rights may substantial be no- cases such as Bader inviting and Schnell 3553(a)(4). although they brought ticed were not attention to the status of To Following day force; attention of the court.” the ex- the 1993 are in do press plain materially command of a statute cannot be these differ from the rules on the any error. The bring reticence court should books when Seacott defrauded the credit un adjudication the task of constitutional ion? Will difference affect the sen —a (Small captured by diffidence maxim that stat- tence? produce differences over enjoy strong utes presumption lapping ranges, constitu- and the same sentence is tionality, Watson, version.) possible United States v. under each

1391 1984, 52(b) post was enacted in ex facto law. It permits an emphasizes that Rule Olano 1, 1987; an effective date of November disregard plain and with even appeals of courts dates are well before Seacott committed both at 1778-79. 113 S.Ct. prejudicial errors. my colleagues What must mean 3558(a)(4) his crimes. §of application if the Thus even altered after is that Guidelines prejudi- inappropriate and clearly was both post facto laws. date of the offense are ex the Seacott, in prudently act we must cial applies Congress, § Art. I 9 cl. 3 not Yet question. the to address deciding whether judicial government, branch of to the constitutionality of opinion on the Issuing an Sentencing Commission is located. the which parties have Congress, the when an Act States, 361, 488 U.S. v. United Mistretta on presentation given us an adversarial not 384-97, 102 L.Ed.2d 714 109 S.Ct. issue, prudent. The United States is not (1989). is Ex Post Facto Clause a “The conceding that Attorney a filed brief Legisla upon powers limitation 3553(a)(4) unconstitutional, apparently § is Bull, ture, 1 v. 3 Dall. L.Ed. see Calder Kopshev- believing have so held that we (1798), not of its own and does force 648 carefully decision on er —a case reserved government.” Branch of apply Judicial issue, 1222 6. A concession 6 F.3d at n. States, 188, 191, v. United 430 U.S. 97 Marks misreading precedents a of our based on (1977). 990, 992, 51 L.Ed.2d 260 See S.Ct. of an the benefit that we have not had means Commission, 802 Prater v. U.S. Parole also Decisions reached presentation.- adversarial (en banc). (7th Cir.1986) 948, 951-52 F.2d parties’ views are benefit of the without the “laws”; Congress only are not likely important matters. to overlook more “laws”; administra are makes (The consider- majority not mention the does Mistretta, 391-97, 109 U.S. at rules. 488 tive below.) prosecutor’s I ations discuss 664-68; v. at Stinson United see justify instructing the district may concession States, U.S. -, -, 113 S.Ct. guide- version of the to use the 1988 (1993). 1918-19, We remand; justify a “hold- it does not on lines rather as rules emphasized their status law the Constitution. ing” that the violates holding misapplication a laws ways express a con finding Instead of support relief under guidelines does not 3553(a)(4), § we should verdict stitutional v. 2255. See Scott United U.S.C. 28 searching ways to avoid decision. be Cir.1993). States, Service, McLaughlin, v. Spector Motor Inc. guidelines have may say that the “the One 152, 154, 101, 105, 89 L.Ed. 65 S.Ct. 323 U.S. Bell, law,” see force of Arcades, (1944); Spokane Brockett (8th Cir.1993), but this 1449-52 F.2d 2794, 2800, 491, 501, Inc., 105 S.Ct. figure speech. The constitutional status adju Constitutional 86 L.Ed.2d depend on meta- rules does of federal Brandeis’s is a last resort. Justice dication guidelines have say that To phors. A, 297 concurring opinion in v. TV Ashwander say will en- that courts “force of law” is 466, 483, 288, 347, 80 L.Ed. them, true of declara- but this is also force (1936), exposition aof is but the most famous opinions. The reference to judicial tions founding existed since principle that has I in Article appears Laws” post “ex facto my colleagues do not Nation. Yet of this Article, in that meaning of “Law” uses upon has been forced that decision contend legisla- regulates the establishes which them; instead, question that they seek out is a A “Law” bill government. tive branch not believe materi -themselves do the parties Congress and Houses of both passed case. al this President, by two- or enacted signed by the majority to tackle the Presi- decided without has of each chamber Because thirds the full of doubt in Prater subject, express approval. I a few words Thus dent’s Parole Commis- I my colleagues’ approach. Article concluded that about bench “Laws” for Bill are not provides: “No release cl. 3 of the Constitution sion’s they although §I el. are of Art. purposes Law shall or ex facto Attainder statute, promulgated majority dis- only authorized passed.” The statute of law” in Register, have the “force 3553(a)(4), assuredly is not Federal which cusses is (1964); Prater, regulations, the as other same sense L.Ed.2d 894 length spends determine of time a felon F.2d at 952. the prison. 802 F.2d at 952-53. Prater See Changes in Sentencing the Guidelines do delegation complete legisla- allowed that a of deprive not defendants of notice that their power subject analysis might tive be under (they conduct is unlawful- do not affect sub Art. I 9 cl. see 802 F.2d at but prohibitions) range stantive possible or the of Congress has not handed over to the Sen- Congress sanctions. sets minimum and max tencing power Commission the to increase these, penalties, imum established before penalties Although for crime. it has autho- occurs, the crime set the boundaries of the permit rized the Commission sentences wrongdoer’s punishment. Before there were minima, mandatory lower 18 U.S.C. guidelines, judges could select a sentence 3553(c), it has not authorized the Commis- any part statutory from range. of the De penalties. sion to maximum increase expectations fendants had no about where in Sentencing only pow- Reform Act creates the range the their A giv sentences would fall. guide judicial er to discretion within the stat- en case could come before one stiff the sen- utory parole guide- limits. Like the release bench; tencer on an otherwise lenient the lines, Sentencing Guidelines are bench- statutory defendant sentenced to the maxi marks: statements of the normal outcome mum, while others who committed the same that prohibit do not variation circum- probation, crime received complaint. had no show that the benchmark time stances. If only after the crime judge occurred the prison inappropriate. See retired, the district and the President re (1st Rivera, Cir.1993) (Breyer, 994 F.2d 942 placed bleeding á nail-eating heart with a J.). enforcer, again the defendant had no com plaint the notice came from the statute guidelines The federal differ from the —for practices and not from the of the bench. .sentencing guidelines Florida addressed in contemplating “No activity one criminal Florida, Miller v. 482 U.S. 107 S.Ct. should encouraged rely practices on the Florida autho judges, prosecutors, officials, of prison or supreme rized its adopt rules that boards; parole that is not the sort of reliance “only upon would become effective the subse prohibition against post ex facto quent adoption by Legislature legisla of ought protect laws protect.” or does Pra implementing guidelines tion as then re ter, 802 F.2d at 921.001(4)(b). 955-56. vised.” Fla.Stat. This made sentencing guidelines the state’s “laws” for Sentencing So too with the Guidelines. purposes, constitutional the Court concluded. The tables at the time of an offense do not 435, 107 482 U.S. at S.Ct. at 2453. We know notify a would-be criminal exposure that his Mistretta, however, from the federal stops short statutory maximum. The judicial products, are and from judge may give a exceeding sentence they Stinson and Scott that are rules rather guideline range; range goes if up, than “laws.” judge may compensate by selecting a sen- range may tence lower post When Marks said that the ex facto Only downward. a fool uses the raw text of force”, apply clause not does “of its own Guidelines to determine judicial branches, the executive and it was pays; whether crime he must take account of recognizing that a line of cases uses the due departures, plus the uncertainty substantial process fifth clauses and fourteenth meaning many about parts of the text. powers amendments to limit the of these inspired by actors. Decisions the ex Changing after the commis- jurisprudence facto hold that the executive sion of a crime deprive does not the criminal may rules, branch promulgate surprising of notice of the elements the offense or the judicial or the surprising branch fashion in statutory punishment. may limits of It upset terpretations rules, existing deprive expectations wrong- the few would-be criminal E.g., defendants of fair notice. study sentencing practices doers who to de- Columbia, Bouie v. though termine their even a small risks — prose- of arrest or change probability in the greater on the a much effect have

cution will change a

anticipated punishment does no one believes that and guidelines,

in the into the detection extra resources

pouring violates the ex prosecution of crime process the ex due clause. Unless

facto or applied judicial

post facto clause is to

action, to Marks to cases from Colder overruled, we con- to be cannot

Prater are 3553(a)(4) cl. Art. I 3. under

demn particular alteration

And whether the latitude allowed

guidelines exceeds question process clause is not

the due in the abstract.

can be answered America, STATES

UNITED

Plaintiff-Appellee, DAVIS, Defendant-Appellant.

Michael

No. 92-3433. Appeals, Court

Seventh Circuit. 10, 1993.

Argued June 7, 1994.

Decided Feb. Rehearing Suggestion

Rehearing and April Banc 1994. Denied

Case Details

Case Name: United States v. Everett D. Seacott

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Feb 7, 1994

Citation: 15 F.3d 1380

Docket Number: 91-3724

Court Abbreviation: 7th Cir.