United States v. Lata

United States Court of Appeals
For the First Circuit

No. 04-2051

UNITED STATES OF AMERICA,

Appellee,

v.

JAMES T. LATA, SR.,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]

Before

Boudin, Chief Judge,

Campbell, Senior Circuit Judge,

and Gertner,* District Judge.

Jonathan R. Saxe, Assistant Federal Public Defender, Federal
Defender Office, for appellant.
Mark E. Howard, Assistant United States Attorney, with whom
Thomas P. Colantuono, United States Attorney, was on supplemental
brief for appellee.

June 24, 2005

*
Of the District of Massachusetts, sitting by designation.
 BOUDIN, Chief Judge. The appeal in this case presents

the question whether a defendant who committed a crime and was

sentenced prior to United States v. Booker, 125 S. Ct. 738 (2005),

can be given a sentence that is within the statutory maximum but

higher than the sentence that he would normally have received

(absent departures) under the mandatory guideline regime. We

conclude, without difficulty, that the ex post facto clause of the

Constitution is not offended by this result; and, on the present

facts, no due process objection to the higher sentence can be

maintained. For other reasons, a remand for resentencing is

justified.

The facts are uncomplicated. On November 12, 2002, James

Lata robbed Citizens Bank in Nashua, New Hampshire, informing the

manager that he (Lata) had a gun and a bomb. Caught in 2003, Lata

was tried and convicted of bank robbery by force and violence in

federal district court in May 2004. 18 U.S.C. § 2113(a) (2000).

On August 2, 2004, Lata was sentenced to 8 years in prison which is

well within the statutory maximum sentence of 20 years. Id.

However, the sentence was greater than the guideline

maximum that would normally have been imposed, absent a departure

upward, under the guidelines applicable either at the time the

crime was committed or at the time the sentence was passed. Under

those guidelines, Lata’s base offense level for the robbery was 20,

which, with adjustments prescribed by the guidelines, produced an

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adjusted offense level of 25.1 Prior convictions gave Lata two

criminal history points but, since the present offense was

committed while he was on probation, two more points were added,

placing him in category III. U.S.S.G. § 4A1.1. An offense level

of 25 and a category III criminal history created a guideline range

of 70-87 months, id. ch. 5, pt. A, so the 96-month sentence was

above the range.

Although Booker had not been decided at the time of the

sentencing, the district court deemed the mandatory regime

unconstitutional based on the Apprendi/Blakely line of decisions,

Apprendi v. New Jersey, 530 U.S. 466 (2000); Blakely v. Washington,

124 S. Ct. 2531 (2004), and it did not therefore regard itself as

bound by the guidelines. The court so ruled after Lata objected

that the guidelines were unconstitutional under Apprendi/Blakely,

insofar as they permitted enhancement based upon judge-found facts.

The district court’s decision to exceed the guideline

sentence was based on Lata’s extensive criminal record and the fear

induced by the threat of the bomb and the gun at the robbery. Lata

had been the subject of arrests, charges and convictions from his

juvenile days onward and, with time out for a lengthy prison

sentence for bank robbery in the 1970s, had a fairly dismal record

1
One level was added because the loss to the bank was between
$10,000 and $50,000. U.S.S.G. § 2B3.1(b)(7)(B). Two levels each
were prescribed because the robbery was of property of a financial
institution, § 2B3.1(b)(1), and a threat of death was employed,
§ 2B3.1(b)(2)(F).

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of continuing involvement with violent crime. For a variety of

reasons, much of this was not reflected in the raw points awarded

for criminal history.

Lata appealed to this court. In his initial brief, Lata

argued that no jury having passed on the facts underlying the

enhancements to his guideline sentence (five levels and the two

probation-related criminal history points), the maximum possible

sentence for him was within the 37-46 month range; this is the

range that would have resulted if he had been sentenced without

enhancements, using an offense level of 20 and a criminal history

category of II. This argument is defeated by Booker, which permits

enhancements based on judge-found facts with advisory guidelines,

Booker, 125 S. Ct. at 749-50, 764; United States v. Antonakopoulos,

399 F.3d 68, 75 (1st Cir. 2005), and need not be further considered.

However, as a fallback argument, Lata argued that the

maximum sentence that could properly be imposed was the 70-87 month

range that resulted from an ordinary application of the guidelines,

including the enhancements already described. A sentence exceeding

87 months, in Lata’s view, violates both the ex post facto clause

of the Constitution, U.S. Const. art. I, § 9, cl. 3, and the due

process clause variant, U.S. Const. amend. V, that may apply even

where the ex post facto clause is inapplicable.

Lata’s initial appellate brief was filed prior to the

decision in Booker itself. Accordingly, we invited both sides to

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supplement their earlier briefs in light of Booker and also asked

Lata whether as a further alternative he wished to argue for a

remand on the ground that the district judge might have reached a

different sentence under the post-Booker guideline regime now in

place. Lata has now made such a request but without prejudice to

his main constitutional claims based on ex post facto precedents,

which he renews.

The ex post facto clause argument is readily answered.

The ex post facto clause forbids not only legislative creation of

new criminal liability after the event but also a legislative

increase in punishment after the event, but it does not apply of

its own force to changes worked by judicial decisions. Rogers v.

Tennessee, 532 U.S. 451, 460 (2001); Marks v. United States, 430

U.S. 188, 191 (1977). In this instance, the change in the

guideline regime from mandatory to advisory was worked entirely by

judicial interpretation, based on the Sixth Amendment and severance

analysis in Booker.

In this respect, the change from mandatory to advisory

guidelines differs importantly from changes in the guidelines’

content worked by ordinary amendments adopted by the Commission and

submitted to Congress. For ex post facto purposes, the federal

courts have assumed that those changes in content should be viewed

as the equivalent of statutory changes–-indeed, in some cases they

are formally directed by Congress. See, e.g., United States v.

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Jordan, 162 F.3d 1, 2 (1st Cir. 1998) (referring to Congress's

enactment of a guidelines amendment). Based on this equation of

guideline changes with statutes, the circuits have normally

approved use of the guideline edition in force at the time of the

crime if later amendments increased the sentences.

That the shift to advisory guidelines stemmed from

judicial decision may seem a formal distinction but the ex post

facto clause is mechanical and, from the standpoint of protecting

reliance, over-inclusive. The clause applies to changes in the

definition of a crime and in the maximum sentence even in

situations where there is no possibility that the defendant in fact

relied on the earlier version of the statute in committing the

crime. And, so far as ex post facto principles rely on concepts of

fair warning, they have been absorbed into the due process clause,

which underpins Lata's only serious argument.

An after-the-offense enlargement of the contours of the

crime or maximum sentence by judicial construction can raise due

process objections based on lack of fair warning but only where the

alteration is “unexpected and indefensible” by reference to the

case law that had been expressed prior to the offense. Rogers, 532

U.S. at 461; Bouie v. City of Columbia, 378 U.S. 347, 354 (1964).

This is an imprecise formula, as the conflicting opinions in

Rogers readily show, so it is of some benefit to understand the

underlying policy dilemma.

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 The underlying problem is one of reconciling the

continuing mutability of judicial doctrine with concerns about

reliance and notice. Glosses on statutes or refinements in common

law doctrine regularly evolve between the time of the crime and a

trial that may occur years later. At least in sentencing, the

criminal's reliance on earlier glosses is usually an imaginary

concern: rarely is the decision to commit the crime affected by

close attention to the statutory penalties, let alone the more

obscure intermediate step of guideline calculations. Lata

certainly does not claim that he in fact relied on the mandatory

guidelines when he robbed the bank.

But the Supreme Court's concern with fair notice goes

beyond actual reliance. Under Bouie, Rogers and Marks, some court-

made changes in criminal law may be so surprising and troubling

(“unexpected and indefensible”) as to offend a sense of fair

warning even if the defendant probably paid no attention to the

case law. In Bouie, for example, the Supreme Court deemed the

state court’s expansive, non-literal reading of its trespassing

statute to be unfair as applied to civil rights sit-in

demonstrators who lacked fair warning that their conduct was

criminal. Bouie, 378 U.S. at 355.

In this case, the “unexpected and indefensible” test

could be difficult to apply if the focus were solely upon the shift

from mandatory to advisory guidelines. Booker was not an isolated

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event but the end of a multi-year evolution developed through a

host of cases; how "unexpected" Booker appears depends largely on

one’s time horizon. Ten years ago, Booker would have seemed

improbable; gradually with Apprendi followed by Blakely, some major

change in guideline status or operations seemed possible; and in

the Booker case itself the government in fact urged a similar

result to that reached by the Supreme Court. See Booker, 125 S.

Ct. at 768 (characterizing the government's remedial suggestion as

"coincid[ing] significantly" with [the Court's] own").

Also, the Booker majority would hardly call its own

decision “indefensible” in the sense of the Bouie case (where it

was almost a polite synonym for "wrong"). But the meaning of the

term is no longer quite clear, compare Rogers, 532 U.S. at 461

(using "indefensible" to mean "unjustified," "arbitrary," or

"vindictive" breaks with prior law), with Marks v. United States,

430 U.S. 188 (1977) (ignoring "unjustified" test but stressing

First Amendment concerns). See also Rogers, 532 U.S. at 468, 480

(Scalia, J., dissenting) (using "indefensible" to mean inconsistent

with prior law and presuming that the majority used the term to

mean "unreasonable").

However, our own case becomes easy if one looks to the

underlying concern of fair warning and asks whether–-measured by

what Lata could objectively know at the time he planned to rob the

bank–-Lata’s later sentence so far disappoints reasonable

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expectations as to raise due process concerns. Booker, after all,

does not lay down a new fixed rule of primary conduct or redefine

elements of a crime (cf. Bouie; Marks) but is only part of a

mechanism or framework by which an ultimate sentence is developed.

Lata’s own sentencing expectations when he committed the crime, if

any, surely related to results.2

Before committing the crime, Lata would have known only

one thing for certain, namely, the 20-year maximum statutory

sentence for bank robbery. He could have made guideline

calculations as well, but only on a variety of further assumptions

about the details of how the crime would occur (e.g., how much

money might be taken, injuries done), what the government might

charge among alternative offenses, events after the crime

(acceptance of responsibility, new criminal history), and the

possibility of reasonable departures based on an array of factors--

some unpredictable.

To some, the government’s position--that Lata could

reasonably rely only on the 20-year maximum–-might also seem

unrealistic from the standpoint of fair notice. Absent extremely

aggravating characteristics not present here-–e.g., a felony murder

in the course of a robbery–-it is not easy to imagine a 20-year

2
If the mechanism had been changed by legislation, as in
Miller v. Florida, 413 U.S. 185 (1977), then the ex post facto
precedents might be invoked; but it was not. See also United
States v. Safarini, 257 F. Supp. 2d 191, 201 (D.D.C. 2003).

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sentence in this case being imposed under the guidelines (or post-

Booker for that matter). In all events, it is unnecessary for the

disposition of this case to adopt a flat and final position on due

process objections to post-Booker sentences for pre-Booker crimes.

Here, we think it is enough to resolve this case that

even viewed as of the time Lata committed the crime--post-Apprendi

but pre-Blakely--someone in Lata's position could not reasonably be

surprised by the sentence he eventually received. Whether or not

exactly the same sentence would necessarily have been imposed by

departures under the guidelines is necessarily uncertain. But the

sentence imposed is not wildly different than a sentence that might

well have been imposed under the guidelines for someone with Lata's

criminal record and offense-related conduct.

Even under mandatory guidelines, a defendant with a

criminal record not fully reflected by criminal history points was

always on notice that the top of his guideline range might be

exceeded. U.S.S.G. § 4A1.3; United States v. Black, 78 F.3d 1, 8

(1st Cir. 1996). Lata's pre-sentence report indicated that an

upward departure might be warranted because of the character of his

criminal record. Nothing in the guidelines flatly forbad the judge

from departing based on the fear induced by the threat of the bomb

and gun. The result does not violate the due process clause.

We reserve for the future the case, if one ever arises,

in which a sentence is imposed for a pre-Booker crime that is

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higher than any that might realistically have been imagined at the

time of the crime or based on factors previously discouraged,

prohibited, or not recognized under the guidelines. As we have

seen, any prospective guideline range estimated before the crime

has been committed is far more contingent and uncertain than may be

true on the day of sentencing. And, since post-Booker sentences

are open to review for reasonableness, Booker, 125 S. Ct. at 765-

66, extreme sentences at the very least will rarely survive

ordinary review so as to present the naked due process question.

This brings us to Lata's remaining argument, which is

that the case ought to be remanded for resentencing under the post-

Booker regime. Of course, the district judge has already sentenced

Lata under a non-mandatory regime, which is what he would again get

on remand. But the district judge did not have the benefit of

Booker's own determination as to what parts of the existing statute

remained after severance and just how the Supreme Court conceived

of the relationship of statute, guidelines, and discretion in post-

Booker sentencing. Booker, 125 S. Ct. at 764-65.

In his post-Booker brief, Lata's counsel notes that Lata

is over 60 and that he is suffering from cancer, so that the

prospects of recidivism are arguably no longer very great. Under

the guidelines, both age and infirmity were discouraged as bases

for departure, § 5H1.1, .4; under the statute alone, conceivably

they might be afforded more weight in a particular case, especially

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if they diminished the risk of recurrence. See 18 U.S.C.

§ 3553(a)(2)(C) (2000) (sentence to take account, inter alia, of

need to protect public “from further crimes of the defendant").

Cf. United States v. Heldeman, 402 F.3d 220, 224 (1st Cir. 2005).

Because the district judge knew most of the pertinent

facts and did not regard himself as constrained by the guidelines,

it is far from clear that the result would be different on remand.

Admittedly, based on defense counsel's proffer, Lata’s affliction

is possibly much worse than was known at the time of sentencing.

But for assessing plain or harmless error–-and the failure fully to

anticipate Booker itself is treated as “error” under existing

doctrine, Antonakopoulos, 399 F.3d at 76--our focus is primarily

upon what was known at the time of sentencing.3

Nevertheless, under our somewhat mechanical test of what

is preserved Booker error, Antonakopoulos, 399 F.3d at 76, the

“error” here was manifestly preserved in the district court, as the

government freely conceded at oral argument. Under the harmless

error test, the government must show beyond a reasonable doubt that

a lower sentence would not be imposed under the post-Booker

regime–-a test where doubts are resolved in favor of a remand.

3
United States v. Antonakopoulos, 399 F.3d 68, 81 (1st Cir.
2005). Yet, if a remand for resentencing is otherwise justified,
it is quite arguable that the sentence on remand can and should
take account of intervening facts that normally bear on sentencing.
United States v. Hughes, 401 F.3d 540, 560 n.19 (4th Cir. 2005).

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United States v. Vazquez-Rivera, 407 F.3d 476, 489 (1st Cir. 2005).

On balance, we think remand is the safest course in this case.

As we have stressed before, a remand even for plain error

does not carry any implication that this court expects or endorses

a lower sentence. Heldeman, 402 F.3d at 224. This is so a

fortiori where the remand arises out of a preserved error and where

the harmless error test makes even a modest possibility of change

enough to warrant remand. This general qualification should not

require repeating in every case; it should be assumed unless the

opinion expressly says otherwise.

The sentence is vacated and the case remanded for

resentencing consistent with this decision.

It is so ordered.

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