Eleventh Circuit: Ex Post Facto Problem with Harsher Guidelines Sentence

The Eleventh Circuit Court of Appeals held that the Ex Post Facto Clause precludes a district court from sentencing a defendant under a provision of the U.S. Sentencing Guidelines that is more severe than the version in effect at the time of the offense, even though the guidelines are now merely advisory. The Court said that while the guidelines are no longer mandatory, neither are they without force. They are central to the sentencing process in that they provide a starting point that likely influences the ultimate sentence, making application of the correct guideline critically important. The Court adopted an "as applied" test, holding that the defendant must show a substantial risk that the application of the guidelines at the time of the offense resulted in the imposition of a harsher sentence. United States v Wetherald, ___F3d___ (CA 11, #09-11687, 3-28-11); full text at http://pub.bna.com/cl/0911687.pdf.