4th Circuit: U.S. Sentencing Guidelines Implicate Ex Post Facto Clause

Today the Fourth Circuit released an interesting opinion touching on the relationship between the U.S. Sentencing Guidelines and the Ex Post Facto Clause of the Constitution.

In United States v. Lewis, the defendant was convicted in the Eastern District of Virginia of unlawful possession of a firearm by a convicted felon.  After Lewis's conviction, but before his sentencing hearing, the Sentencing Guidelines were changed, resulting in sentencing range for Lewis that was double what the range would have been had the Guidelines not been changed.  The district court found that applying the amended Guidelines range to Lewis would violate the Ex Post Facto Clause, and Lewis was then sentenced under the 2005 (pre-amended) Guidelines.  The United States appealed the sentencing ruling, and Lewis appealed the district court's denial of his motion to suppress evidence of the firearm for which he was convicted of unlawful possession.  For purposes of this post, only the Sentencing Guidelines issue is relevant.

The Fourth Circuit, by a 2-1 decision, agreed with the district court, concluding that applying the more harsh sentencing range suggested by the amended 2008 Guidelines would violate the Ex Post Facto Clause, and that Lewis was properly sentenced under the 2005 Guidelines.

The majority wrote that the court "need only determine whether, practically speaking, application of the 2008 edition of the Guidelines would have created a significant risk of increased punishment for Lewis."  The Fourth Circuit, using as 'as applied' analysis, found that an almost two-fold difference in the likely sentences suggested by the opposing versions of the Guidelines would certainly create a "significant risk of increased punishment."  The majority additionally found, in refuting the dissent's analysis, that the sentencing judge's use of the Guidelines as merely a consideration before imposing its sentence does not comport with Fourth Circuit precedent.  Rather, the majority wrote, "the [sentencing] court must correctly calculate the advisory Guidelines range, and it must provide an adequate explanation of how it arrived at that calculation." (emphasis added).

The dissent, by Judge Goodwin (sitting by designation), relied primarily on the plain text of the Ex Post Facto Clause and the effect of United States v. Booker.  [As quick background, in Booker, the Supreme Court found that the Sentencing Guidelines do not have strict legal force and are merely advisory, rather than mandatory.]  Because the Ex Post Facto Clause applies only to retroactive "laws," Judge Goodwin opined, it cannot logically apply to a merely advisory Guidelines range.  "In so doing [finding the Ex Post Facto Clause applies], the majority ignores the reality that the Guidelines lack legal force."

Although I practice a significant amount of criminal defense law, I think I must agree with Judge Goodwin's dissent here.  If we are going to accept the Supreme Court's decision (not like we have a choice) that Booker made the Guidelines fully advisory and with no true legal force, then it must follow that we cannot treat the Guidelines as mandatory in any respect.  Everyone knew that Booker was a very significant decision when it was rendered, but I think now we're starting to see some of its collateral effects.  There is apparently a split among the federal appellate courts on this Ex Post Facto Clause issue (the Lewis decision explored opposing views from two circuits -- the Seventh and the D.C. Circuits), and this may be ripe for Supreme Court review sometime soon.

4th Circuit: No Expectation of Privacy in Your Internet Subscriber Information

In a child pornography case, the Fourth Circuit recently considered a novel issue (in the Fourth Circuit, at least) in a challenge to whether the Fourth Amendment protects an expectation of privacy in Internet subscriber information.

In United States v. Bynum, the defendant was convicted by a jury of interstate transport and possession of child pornography, federal offenses.  Judge Reidinger, of the Western District of North Carolina, sentenced Bynum to 16 years in prison – a mid-Guidelines sentence for these particular offenses and Bynum’s criminal history (category I).  Bynum appealed to the Fourth Circuit, arguing the district court erred on several issues, however, this blog comment concerns only one of the issues reviewed by the appellate court.

Bynum claimed on appeal that the FBI violated his Fourth Amendment rights by using administrative subpoenas to acquire his Internet subscriber information – i.e., his name, telephone number, email address, and physical address.  To get this information, the FBI went through several links in a chain.  First, the FBI identified the IP address belonging to a frequent user (“markie_zkidluv6”) of a Yahoo! chat room who had uploaded various pictures of child pornography.  After identifying the IP address for “markie_zkidluv6,” the FBI tracked down the Internet provider associated with that IP address and subpoenaed the user’s Internet subscriber information.  Thus, the FBI determined that “markie_zkidluv6” was actually Bynum.

On appeal, Bynum argued that the district court erred, inter alia, by denying his motion to suppress the evidence against him as being the fruit of unlawful administrative subpoenas.  The Fourth Circuit disagreed with Bynum, issuing its opinion on May 5 and finding that Bynum had no subjective reasonable expectation of privacy in the subscriber information he supplied to his Internet provider.  Judge Motz wrote that “Bynum voluntarily conveyed all this information to his Internet and phone companies.  In so doing, Bynum assumed the risk that those companies would reveal that information to police.” (quoting Smith v. Maryland).  Further, Bynum voluntarily included his age, sex, location, and a picture of himself on his Yahoo! chat profile.  Because the FBI’s subpoenas did not invade any legitimate expectation of privacy, the Fourth Circuit found that the FBI did not violate Bynum’s rights under the Fourth Amendment, and the district court correctly denied his motion to suppress.

All in all, this decision is probably the right one, even from a South Carolina criminal defense attorney’s perspective.  We all subject ourselves to a slight loss of privacy when we put ourselves “on the grid” and voluntarily provide personal information to Internet and other service providers in order to become customers.  For someone to give his real name and contact information, access and upload child pornography, and then claim that he had an expectation that his information would be kept private from law enforcement… that really doesn’t seem reasonable.