Sixth Circuit Court of Appeals Vacates Sentence for Violating Constitution’s Ex Post Facto Clause

Aug 16, 2012   

On August 2, 2012, the United States Court of Appeals for the Sixth Circuit vacated a criminal defendant’s sentence, because it violated the ex post facto clause of the U.S. Constitution.  The case was United States of America v. Welch,  ___ F.3d ___, (6th Cir. Aug. 2, 2012), available here.

The facts of the case are fairly straightforward.  The defendant in the case, Welch, was charged with counterfeiting after bleaching genuine, small denomination federal reserve notes and then using the bleached notes to print notes bearing higher denominations.  Welch was arraigned on March 30, 2010, in federal court on the counterfeiting charges. He pleaded guilty without a plea agreement to four violations of counterfeiting, including one count of conspiracy to manufacture and pass counterfeit obligations or securities with intent to defraud the United States in violation of 18 U.S.C. § 371, available here, and three counts of falsely making, forging, counterfeiting or altering, as well as passing, obligations or securities of the United States with intent to defraud in violation of 18 U.S.C. §§ 471, available here, and 472, available here.

Following his guilty plea, Welch was sentenced in the United States District Court for the Northern District of Ohio on August 5, 2010, to concurrent 42-month sentences on each of the four counts.

The question on appeal was whether the district court erred in using the United States Sentencing Guideline ("U.S.S.G.") § 2B5.1 (pre-2009), instead of U.S.S.G. § 2B1.1, available here, to calculate Welchs offense level. Generally, courts use the Guidelines in effect at the time of sentencing, which in this case (August 2010) would be the 2009 version of the Guidelines Manual. 

However, the Guideline language before November 1, 2009 raised a problem. Application Note 3 to § 2B5.1 expressly excluded altered genuine notes, which was what Welch used in his counterfeiting scheme, from the purview of § 2B5.1. The application note provided in pertinent part as follows:

3. Inapplicability to Genuine but Fraudulently Altered Instruments. “Counterfeit,” as used in this section, means an instrument that purports to be genuine but is not, because it has been falsely made or manufactured in its entirety. Offenses involving genuine instruments that have been altered are covered under § 2B1.1 (Theft, Property Destruction, and Fraud). 

In response to the confusion as to whether § 2B1.1 or § 2B5.1 applied to altered genuine currency, the Sentencing Commission issued Amendment 731, which amended § 2B5.1 to expressly include alterations of currency by bleaching within its purview.  Amendment 731, which became effective on November 1, 2009, provides in pertinent part: 

Section 2B5.1(b)(2)(B) is amended by inserting “(ii) genuine United States currency paper from which the ink or other distinctive counterfeit deterrent has been completely or partially removed;” after “papers”; and by striking “or (ii)” and inserting “Or (iii)”.

Based on these inconsistent guideline provisions, Welch argued at sentencing that because he “altered” federal reserve notes and did not “manufacture” them in their entirety, § 2B1.1 should apply under the plain language of Application Note 3 to § 2B5.1, as it existed at the time he committed the offense.  Welch further argued that using the 2009 version of § 2B5.1, which took effect between the time of his offense conduct and his sentencing, violates the Ex Post Facto Clause of the United States Constitution, available

here, because it was not in effect at the time of his offense and it subjectedhim to a significantly higher penalty.

Relying on Miller v. Florida, 482 U.S. 423 (1987) available here, the Sixth Circuit agreed. In Miller, the Supreme Court unanimously concluded that a revision in Floridas sentencing guidelines that went into effect between the date of the defendants offense and the date of his conviction violated the Ex Post Facto Clause of the U.S. Constitution. The Courts conclusion that the new guideline was more onerous than the prior law rested entirely on an objective appraisal of the impact of the change on the length of the defendants presumptive sentence. 482 U.S. at 431 (“Looking only at the change in primary offense points, the revised guidelines law clearly disadvantages petitioner and similarly situated defendants.”).

In this case, because the difference between the sentence (as a result of the change in the Guidelines) was 37-46 months versus 21-27 months, the Sixth Circuit concluded that the Ex Post Facto Clause had been violated, vacated the sentence and remanded for resentencing.

The attorneys at Fuerst Ittleman David & Joseph, PL have extensive experience in both Federal and State Courts at the trial and appellate levels handling a variety of white-collar criminal cases. You can reach at attorney to discuss your case by calling us at 305.350.5690 or by emailing us at:  contact@fidjlaw.com.