3. Application of the One Book Rule to Multiple Counts
Four circuits have applied the one book rule to multiple counts in situations similar to the case at bar. The First, Eighth, and Eleventh Circuits have concluded that applying the one book rule to multiple counts occurring pre and post amendment does not violate the Ex Post Facto Clause. The Ninth Circuit recently held that the one book rule may violate the Constitution in certain cases similar to the one before the Court.
In United States v. Cooper, 35 F.3d 1248, 1249 (8th Cir. 1994), vacated, 514 U.S. 1094, 115 S. Ct. 1820, 131 L. Ed. 2d 742, reinstated, 63 F.3d 761 (8th Cir. 1995), cert. denied, U.S. , 116 S. Ct. 1548, 134 L. Ed. 2d 650 (1996), the defendant pleaded guilty to three counts of being a felon in possession of a firearm. Two of the counts were committed prior to the 1991 Guidelines amendment; the last count was committed after the 1991 amendment. Id. The district court sentenced all three counts under the amended version, and the defendant challenged his sentence on ex post facto grounds. Id. In upholding the sentence, the Eighth Circuit reasoned that on the date the defendant committed the last offense, he was on notice that the amended Guidelines increased the offense levels for the crimes in question and required aggregation of firearms under the new grouping rules. Id. at 1250-53. In language equally applicable to Defendant Tucker, the court observed that "it was not the amendments to the Sentencing Guidelines that disadvantaged [the defendant], it was his election to continue his criminal activity after the 1991 amendments became effective." Id. at 1250.
The Cooper court further reasoned that the amended Guidelines should be applied because the two pre-amendment counts were part of the same or continuing course of conduct as the last count, committed post amendment. Id. at 1251. The Eighth Circuit has noted that for sentencing purposes the "same course of conduct" is the unilateral equivalent of the continuing group offense of conspiracy. Id. The completion date of a continuing offense controls which version of the Guidelines are applied. Id. The court concluded that the pattern of offenses committed by the defendant spanning the time the amendment took effect met the Commission's definition of "same course of conduct." Id. n.4. Thus, the court found that application of the Guidelines in effect when the last offense was committed did not violate the Ex Post Facto Clause.
Id. at 1253.
Finally, the Cooper court relied on the Commission's commentary addressing ex post facto concerns and recognized that applying the pre-amendment Guidelines could lead to the anomalous result that "a particular defendant could be subject to a lower sentence if convicted of multiple offenses spanning a revision of the Sentencing Guidelines, than if convicted of the singular last offense after the revision of the Sentencing Guidelines." 35 F.3d at 1252. The Court agrees with the Eighth Circuit that Congress did not intend nor does ex post facto law compel such a result. See id. n.5.
Like the Eighth Circuit, the Eleventh Circuit also relied on the fair warning principle and the analogy to a continuous offense such as conspiracy in concluding that application of the post-amendment Guidelines to multiple counts, some occurring before and some after the amendment, did not violate the Ex Post Facto Clause. United States v. Bailey, 123 F.3d 1381, 1997 WL 588845, at *20-*22 (11th Cir. 1997)(to be reported at 123 F.3d 1381). The court stated "a defendant knows, when he continues to commit related crimes, that he risks sentencing for all of his offenses under the latest, amended Sentencing Guidelines Manual." Id. at *20.
In United States v. Regan, 989 F.2d 44, 45 (1st Cir. 1993), the defendant pleaded guilty to 55 counts of bank embezzlement. Some offenses were committed prior to the 1989 amendment that increased the base level enhancement. Id. at 48. The district court applied the amendment to all counts, and on review the defendant complained that his sentence violated the Ex Post Facto Clause. Id. The First Circuit recognized that all the defendant's embezzlements were part of an ongoing scheme and that the pre-amendment offenses would become relevant conduct had he been convicted only on the later counts. Id. Finding that the defendant had fair warning at the time he committed his later acts that his prior conduct could be used in determining his sentence for the later counts, the court held that the sentence imposed was constitutional. Id.
Defendant relies upon a recent Ninth Circuit decision that in certain cases the policy statement in Guideline section 1B1.11(b)(3) violates the Ex Post Facto Clause. United States v. Ortland, 109 F.3d 539, 546 (9th Cir. 1997), cert. denied, U.S. , 118 S. Ct. 141, 139 L. Ed. 2d 89, 1997 WL 356638. Ortland is the only circuit court decision specifically addressing Guidelines section 1B1.11(b)(3).
In Ortland, the defendant was convicted of five counts of mail fraud. Id. at 546. Four of the five counts occurred before an amendment to the Guidelines that increased the punishment for fraud. Id. The district court, following section 1B1.11(b)(3), calculated the total loss from all five counts and applied the post-amendment Guidelines to determine the defendant's sentence. Id.
In addressing the ex post facto challenge to section 1B1.11(b)(3), the Ninth Circuit examined the Commission's reasoning and found it unpersuasive, noting that the Commission "analogized to relevant conduct calculations, not to ex post facto cases." Id. at 546. The court remanded for resentencing, stating:
Application of the policy statement in this case would violate the Constitution; its application would cause Ortland's sentence on earlier, completed counts to be increased by a later Guideline. Moreover, the Commission's explanation is not entirely logical. The harm caused by the earlier offenses can be counted [as relevant conduct] in sentencing the later one. That does not mean that the punishment for the earlier offenses themselves can be increased, simply because the punishment for the later one can be. In fact, were the later count to fall at some time after sentencing, all that would remain would be the earlier sentences, which would be too long. There are [in this case] five separate crimes; each carries its own punishment, even if the sentences are all to run concurrently to the extent that they overlap. We therefore vacate the sentence and remand so that the district court can sentence Gerald [Ortland] under the 1988 Guidelines on counts one through four and under the 1994 Guidelines on count five.