UNITED STATES OF AMERICA, Appellee, v. STEPHEN MANTHA, Defendant, Appellant.
No. 18-1951
United States Court of Appeals For the First Circuit
December 10, 2019
Before Thompson, Boudin, and Kayatta, Circuit Judges.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Timothy S. Hillman, U.S. District Judge]
Elizabeth A. Billowitz for appellant.
Alexia R. De Vincentis, Assistant United States Attorney, with whom Andrew E. Lelling, United States Attorney, was on brief, for appellee.
KAYATTA, Circuit Judge. This appeal concerns the interaction between the Sentencing Guidelines’ grouping rules, the one-book and multiple-offense rules, and the
I.
In approximately 2001, Stephen Mantha molested a child who was then between six and eight years old. Mantha also recorded the molestation on a VHS tape. Fifteen years later, between late 2015 and early 2016, Mantha‘s employer, the U.S. Postal Service, caught him searching for and viewing child pornography on his workplace computer. A subsequent search of his home turned up the recording of the 2001 molestation and electronic storage devices containing additional child pornography. Mantha eventually entered a straight guilty plea to three offenses: (1) sexual exploitation of a child in violation of
The Presentence Investigation Report (PSR) prepared by the Probation Officer grouped the second (2015–2016 internet searching) and the third (2016 possession) offenses, but not the first (2001 exploitation) because the 2001 offense was insufficiently related to the more recent two offenses. See
Both Mantha and the government objected to the use of the 2016 manual as applied to the 2001 exploitation offense, agreeing that, in thе words of the government, “it would be a violation of the [Ex Post Facto] clause to apply the present
Mantha timely appealed. We review de novo a preserved claim that application of a particular version of the Guidelines violated the Ex Post Facto Clause. United States v. Goergen, 683 F.3d 1, 3 (1st Cir. 2012).
II.
A.
We look first to see if the Guidelines themselves support the approach taken by the district court, apart from any limitations imposed by the Ex Post Facto Clause. The Guidelines adopt what we call the “one-book rule“: “The Guidelines Manual in effect on a particular date shall be applied in its entirety.”
call the “multiple-offense rule“: “If the defendant is convicted of two offenses, the first committed before, and the second after, a revised edition of the Guidelines Manual became effective, the revised edition of the Guidelines Manual is to be applied to both offenses.”
The Constitution states that “[n]o . . . ex post facto Law shall be passed.”
In a case decided shortly after Peugh, our circuit nevertheless held that application of the one-book and multiple-offense rules to a series of grouped offenses does not violаte the Ex Post Facto Clause even if the earlier grouped offense occurred before
The Sentencing Guidelines’ one book and grouping rules placed [the defendant] on notice that if he committed a closely related offense in the future, his sentence for both offenses would be calculated pursuant to the Guidelines in effect at the time of that later, related offense conduct. . . . Accordingly, the chаnge in [the defendant‘s] offense level is properly viewed not as a consequence of an ex post facto violation, but as the direct result of his decision to engage in closely related offense conduct [after the amendment].
Id. at 599. Every circuit except the Ninth agrees with this holding. See id. at 598 (collecting cases); United States v. Siddons, 660 F.3d 699, 706–07 (3d Cir. 2011); see also United States v. Wijegoonaratna, 922 F.3d 983, 992–93 (9th Cir. 2019).
Mantha‘s case differs from Pagán-Ferrer in a crucial way: his offenses were not grouped. The Guidelines commentary states that this distinction is irrelevant, reasoning that “[t]he
ex post facto clause does not distinguish between groupable and nongroupable offenses.”
Arguably, the offenses here, while not closely related (they were, after all, fifteen years apart and did not involve the same victim), could be seen as related in some sense; one involves abuse of a child and the other possession of visual depictions of another person‘s abuse of a child. But аs we move down the spectrum from “closely related” to “related,” the fiction of notice in the case of groupable offenses, however plausible, approaches utter fantasy, and would seem to have no stopping point. After all, almost all crimes committed by the same person are related in some significant sense.
Thе Guidelines’ commentary justifies the application of a later and stiffer Guidelines manual to an earlier ungrouped offense by observing that misconduct predating a manual change may be considered in sentencing for a post-amendment offense if the
earlier misconduct qualifies as “relevant conduct” in its relationship to the more reсent offense. See
In finding the tenuous relatedness between Mantha‘s earlier and later crimes tо be material, we also have in mind the fact that the Ex Post Facto Clause advances purposes beyond that of providing notice. It serves the cause of “fundamental fairness” by “having the government abide by the rules of law it establishes to govern the circumstances under which it can deprive a person of his or her liberty or life.” Peugh, 569 U.S. at 544 (quoting Carmell v. Texas, 529 U.S. 513, 533 (2000)). Simply telling a person that those rules may change should not suffice to circumvent the ex post facto bar. Otherwise, that bar could be effectively eliminated altogether by the enactment of a broad, catch-all caveat.
Three of the four circuits that have addressed the question now before us have held that application of the one-book and multiple-offense rules to ungrouped offenses constitutes an ex post facto violation. See United States v. McMillian, 777 F.3d 444, 449 (7th Cir. 2015); United States v. Saferstein, 673 F.3d 237, 244 (3d Cir. 2012); United States v. Lacefield, 146 F. App‘x 15, 22 (6th Cir. 2005). The only circuit court opinion to the contrary predates Peugh and relied almost exclusively on the Guidelines commentary in reaching that result. See United States v. Butler, 429 F.3d 140, 153–54 (5th Cir. 2005). Our focus on groupability in Pagán-Ferrer invites the approach adopted by the majority of these other circuits, and we now join them expressly.
Our holding today is a narrow one. We leave undisturbed the rule laid out in Pagán-Ferrer. Furthermore, we do not say that application of the multiple-offense rule to ungrouped conduct will pose a problem in all circumstances. Different permutations may necessitate a different analysis. We hold only that, under the prеsent circumstances, where the TOL is raised by application of a Guidelines amendment to a pre-amendment offense based solely on the existence of post-amendment offenses that are not closely related to the earlier offense, use of the post-amendment Guidelines is unconstitutional.
B.
We now turn to the government‘s argument fоr why Mantha‘s sentence should be upheld notwithstanding the ex post facto violation. The government relies on the district court‘s statement that “I believe [196 months] would have been the sentence that I was going to impose under either scenario.”5 The government
argues,
In making this harmless-error argument, the government presumes that the district court‘s sentence stood independently on each of two legs: a nonvariant (or downwardly variant) application of the new Guidelines manual, and an upward variance from the GSR calculated under the older manual. Thus, reasons the government, it makes no difference that the former leg was infirm.
But this reasoning only works if the second leg itself suffers from no disqualifying infirmity. And it clearly does suffer from such an infirmity because the record contains no statement of reasons for the upward variance. When sentencing, a court must “state in open court the reasons for its imposition of the particular sentence,” and for sentences outside the GSR, the stated reasons must be “specific.”
reasons for the sentence can be “inferred from the record,” United States v. Rivera-Gonzalez, 809 F.3d 706, 712 (1st Cir. 2016), because the government provided defendant-specific reasons for a harsher sentence at the sentencing hearing. The record lacks any indication that the district court was adopting those reasons, and in the context of a substantially upwardly variant sentеnce we decline to impute the government‘s justification to the court and thereby relieve the court of its statutory obligation.
The government questions whether Mantha preserved in the district court his objection to the adequacy of the court‘s explanation for the upward variance. But even assuming plain-error review applies, Mantha would prevail on this point. See id. at 711 (setting out the plain-error standard). Section 3553(c) is unambiguous and its requirement for justifying a variant sentence is well known. Indeed, we have previously found similar omissions in upward-variance cases to constitute plain error. See United States v. Montero-Montero, 817 F.3d 35, 37 (1st Cir. 2016) (vacating a 60-month sentence where the GSR was 6–12 months and the сourt gave “no coherent explanation” for the variance); Rivera-Gonzalez, 809 F.3d at 712 (vacating a 360-month sentence where the GSR was 60 months and the court gave “no explanation” for the variance). We have upheld, under plain-error review, “short and simple” explanations for small upward variances, United States v. González-Rodríguez, 859 F.3d 134, 136, 139 (1st Cir. 2017)
(affirming a 33-month sentence where the GSR was 24–30 months and the court explained that the defendant‘s “conduct [flouted] the law and . . . represent[ed] a risk to the community” (alterations in original)), but here there is no explanation at all. The possibility of prejudice and unfairness in this situation cannot be discounted. See Montero-Montero, 817 F.3d at 38; Rivera-Gonzalez, 809 F.3d at 712. We cannot rule out the possibility of a lower sentence
None of this is to say that the sentence assigned by the district court is substantively precluded as excessive. For that reason, we reject Mantha‘s argument that a 196-month sentence would necessarily represent an abuse of discretion even if properly explained.
III.
For the foregoing reasons, we vacate the district court‘s sentence and remand for resentencing consistent with this opinion.