*1 corporations, ized that partner- Ass’n, individual Minnesota & Health Ins. Guar. Life associations, (Minn.1994). ships, voluntary 557, organiza- and Leg- 518 N.W.2d The deliberate, policies tions could hold numerous covered on islature’s action was a retroactive employees behalf of or I change other beneficiaries. in the law which altered the settled agree Association, Legislature’s therefore cannot that the contractual duties of the and justified amendment greatly impaired Honeywell’s right of the statute is because pay- consequences. of payout, unforeseeable ment. The size of the while substan- tial, provide does not seem to me to sufficient imposed That the amendment a retroactive justification Indeed, change. for the change raises the “hurdle” the state must large payout only size of the serves to under- justify clear in impair- order a substantial substantiality obligation score the Legislation ment of contracts. which makes Legislature has nullified. prospective changes affecting private con- appropriate commonplace Many tracts is an underlay and reasons the determination function; legislative private contracting par- of Framers to create a new Constitution. ties, especially industries, regulated Perhaps prominent should none was more than their expect regulations may change laws and conviction that should States not be allowed dealings. destroy affect their future We exam- or water down contracts for the justification ine the state’s payment money. retroactive of The Contracts Clause changes carefully opposite more perhaps strongest single because the “was constitu- generally private contracting parties is true: tional check legislation during on state our Nation____” expect should and early years do the conditions as a Allied Struc- they under which contracted will remain in Spannaus, tural supra, Steel Co. 438 U.S. 241, (footnote effect unless until change. omitted). there is a at 2720-21 They normally expect do not I regret today lawmakers to that this Court shrinks from change assumptions the basic underlying Constitution, enforcing part which agreements those legal designed so as to affect obli safeguard is right, a basic human incurred, gations vested, rights right in the private to make contracts. It is not past. See Minnesota Ass’n Health Care people injured coincidence that most of the of Facilities, Inc. v. Dep’t Minnesota Pub. this statute cannot vote for the Minnesota Welfare, 442, (8th Cir.1984) 450-51 Legislature. (upholding prospective change striking respectfully I dissent. change down retroactive because it “dis rupt[ed] completed settled and financial ar
rangements under contracts made in reliance law”), denied, existing 1215,
on cert. 469 U.S. (1985); Holi
day Franchising, Branstad, Inns Inc. v. Cir.)
F.3d (observing that retro America, Appellee, UNITED STATES of changes active prior which alter contractual relationships uniformly have “almost been unconstitutional,” declared and that “this is a Lyle PATON, Appellant. Robert [parties] datum on presumably which are rely allowed to bargaining”), while cert. de No. 96-1775. —nied, Appeals, Court of Eighth Circuit. Legislature The Minnesota in this case Submitted deliberately Oct. change effected a retroactive the law to allow the Association to avoid a April Decided payout. million $110 Minnesota Su- preme Court Legislature’s has held that the change,
amendment was a and not a clarifica-
tion of Honeywell, the statute. Inc. v. *2 MN, Minneapolis, Hopeman, argued,
Jon appellant. for Wilhelm, argued, Minneapolis, D. Gerald MN, appellee. for BRIGHT, WOLLMAN, LAY, and Before Judges. Circuit BRIGHT, Judge. Circuit conviction appeals his Lyle Robert Patón involving the use of materials in sexually conduct viola- explicit of minors 2252(a)(4)(B). reject We tion of 18 U.S.C. conviction is arguments that agreement previous plea barred and the the 1995 violates however, remand, Third, Ex Post Facto We Facto argues clause. clause. light resentencing of Koon v. granting mo- erred his 135 tion for a downward We consider arguments these turn. *3 BACKGROUND I. ' 1982, In December Patón was arrested and We review the district inter court’s for using indicted the United States mail to pretation plea agreement its and in transmit obscene material violation of 18 plea agreement conclusion that the not did 1461, § using produce U.S.C. to minors sexu- prosecution bar the 1995 de novo. See Mar ally explicit in photographs violation of 18 I.N.S., galli-Olvera 345, 43 F.3d 350-51 2251, § conspiracy U.S.C. to and commit an (8th Cir.1994). district court concluded § in offense violation 18of U.S.C. 371. Pur- that plea agreement the immunized Patón plea agreement, pled suant to a guilty Patón only charges “concerning from to related charge mailing to the of obscene material and underlying plea the agree indictment that the Government dismissed the other two agree. ment.” R. at 21. We charges. accepted The United States the guilty plea, “in full satisfaction of all Federal agreement plea provided The 1983 charges may brought against which be guilty plea that Paton’s of charge of the LYLE R. by PATON reason of the informa- mailing photos obscene was “in full satisfac provided pursuant agreement[.]” tion to this charges tion of all may Federal be which Appellee’s Add. at A-4. Patón subsequently brought against by LYLE R. PATON reason completed probation. his sentence provided pursuant of the information May 23, 1995, On police executed a agreement^]” search Appellee’s Add. at A-4. The warrant at Paton’s residence and discovered agreement intent of the is clear. provides It photographs containing depictions sexual immunity charges of against for two in Patón minors. Most of relevant photographs the exchange guilty plea. addition, for his In the forming were the same as those the for agreement basis plea that warns Patón remains Paton’s 1983 subject conviction.1 prosecution any jurisdiction in for short, additional In crimes. the Government right jury Patón waived to a his trial. The agreed bring not to additional charges aris that concluded neither the 1983 ing out of Paton’s conduct between 1978 and plea agreement Ex nor the Post Facto clause agree ignore did not future possession barred pho- for criminal activity. See United States v. Her tographs. The court district then Pa- found nandez, Cir.1992) guilty ton of photos because thirteen the (plea agreement violated not when additional sexually were explicit purposes for of 18 charges brought activity). for later criminal 2252(a)(4)(B). § U.S.C. pho- These thirteen Accordingly, we conclude that plea the 1983 tos also formed the basis Paton’s 1983 agreement bar prosecution. did not the 1995 conviction. Prior to sentencing, Patón moved for a II. downward The district court de- nied the motion and sentenced Patón to Patón next asserts that the 1995 conviction twenty-four imprisonment months’ low—the possession of obscene materials violates applicable guidelines end of the range. Pa- Ex the Post clause. Facto of Possession appealed. ton such illegal materials was 1983 when First,
Patón possessed raises issues. photos three Patón Patón the involved both argues agreement plea prosecutions. however, the 1983 Congress, bars the criminal- prosecution. Second, argues he ized that in 1990 enacting 18 It is kept police unclear from record how Apparently, Patón the somehow over- duplicate photographs these of those seized looked them in 1982. (1997). 2252(a)(4)(B). We contends that U.S.C. conviction, may only if it on the reverse the district court which is based statute, Facto abused its discretion. Koon v. United violates -,---, it criminalizes conduct clause because 2047-48, 135 pho- he first obtained the innocent when was disagree.
tographs. We sentencing hearing At the court stated: continuing of the case “‘[I]n declines to downward. The court Facto clause is not ... the Ex Post fenses examining arguments [Paton’s] In individ- to an by application of a statute violated ually together agree the court does to, began prior but continued enterprise that that these facts create a situation not con- after, statute].’” of [the the effective date templated Commission. Garfinkel, 29 F.3d Although these circumstances are indeed *4 (8th Cir.1994) (quoting v. 1259 unusual, unusual nature of this case is the (2d Cir.1990)). Torres, 205, 226 901 F.2d conducted [Paton’s] [sic] due to continuing specifically, a conviction More illegal possess to of material which is after the effec possess obscene material to to 18 Unit- has been since the amendments 2252(a)(4)(B) § does of 18 U.S.C. tive date passed ed States Code Section were Facto clause. United not violate the ignorance of the law or [Paton’s] (5th Cir.), Layne, v. 43 F.3d States understanding applica- of its his mistaken — U.S.-, denied, cert. himself not warrant tion to does (1995). Accordingly, we Sentencing Tr. at 21-22. The district court district court. affirm the determination, however, prior made to the its Supreme decision in Koon. In that Court’s III. case, the Supreme the Court stated argument final is that the district the district court must determine whether during sentencing by denying a court erred departure are encour- grounds asserted for the departure. Patón asserts that downward discouraged, aged, forbidden or unmentioned his motion to down- Koon, district court’s denial of by Sentencing the Guidelines. depart from the court’s erro- ward resulted “If is at 2045. a factor authority Guidelines, neous belief that it did not have the court unmentioned in the so. must, do considering the ‘structure and after guidelines theory relevant individual of both A district court’s decision whole,’ ... taken as a and the Guidelines depart downward made with the understand it is sufficient to take decide whether depart ing power court’s cannot be Id. heartland.” case out Guideline’s v. appeal. United States reviewed on omitted) (citation v. (quoting United States (8th Cir.1996). The Knight, 96 F.3d Cir.1993)). (1st Rivera, 994 F.2d applicable may depart from the by mitigating factors asserted range aggravating “an guideline if it finds Patón, kind, together, are unmen when considered mitigating circumstance of a or to The Guidelines under the Guidelines. degree, adequately taken into consider tioned an contemplate a situation where in for did not ation Commission “in plea bargain full individual enters into a mulating guidelines____” 18 U.S.C. may 3553(b). charges which all Federal key question § is whether an satisfaction of “The government prose later brought” and the presents a ‘characteristic or be individual case conduct the individual for non-criminal distinguishes the case cutes circumstance [which] government at the time of the known to the cases covered from the ‘heartland’ crimi later becomes important plea bargain, but which guidelines way in a that is to the ” Koon, the district court sentencing.’ light nal. In statutory purposes of determining Lewis, misconstrued the Guidelines Cir. States v. by the 1996) 5K2.0), contemplated this is (quoting cert. de situation U.S.S.G. Thus, nied, U.S.-, the district Sentencing Commission. Davis United departure that warranted a determining that it lacked about the case erred in court range. I no Because see authority from the Guidelines downward. court’s of discretion in the district abuse Accordingly, and vacate the we reverse affirm as well as ruling, I would the sentence to the district existing sentence and remand the conviction. resentencing consistent with court for may depart opinion. The district court pres- if it
downward determines outside the mitigating circumstances
ents
“heartland” of the Guidelines.
CONCLUSION conviction and remand
We affirm Paton’s resentencing. WARMUS, Appellant, A. Thomas
WOLLMAN, Judge, concurring Circuit dissenting. Oetting; MELAHN; Lewis James I concur in Parts I and II of the court’s Hobbs, Appellees. William dissent, however, opinion. I from the court’s No. 93-4083. holding that the district court misconstrued *5 determining that the Guidelines the situa- Appeals, States Court of United presented by was not tion this case contem- Eighth Circuit. plated Commission. Jan. Submitted True, unlikely it is the Commission case, contemplated facts of Paton’s the exact April Decided compel the conclusion that does contemplate the of- the Commission did possession
fense committed Patón: pornography. Having
child held plea pros- not immunize him from
earlier did now-illegal
ecution for the of those
materials, do we have to hold what warrant
that this case is somehow different for sen-
tencing purposes any from other upon
based the 1990 statute? has us that a Court told district
court’s decision to from the Guidelines given
should in most eases be substantial
deference, including par- the decision that a
ticular case falls within or without the heart-
land of cases in the Guideline. Koon v. -,---, U.S. 2035, 2046-48, Kalb, See also United States Cir.1997). Although
F.3d
district court did not have benefit of
Koon and did not articulate its reason- thus
ing precisely the formulation set forth
Koon, it in effect “a made refined assessment outcome,” many bearing facts on the
—Koon, at-, nothing
and then determined that there was