Revised Sentencing Guidelines and the Ex Post Facto Clause

Federal judges must sentence convicted offenders according to guidelines promulgated and periodically revised by the United States Sentencing Commission ("The Commission").' By both statute and guideline, sentencing judges are required to apply the Guidelines Manual in effect at the time of sentencing.2 Citing the Ex Post Facto Clause,3 however, every circuit has rejected sentences produced by this rule where an applicable guideline was revised to the offender's detriment between the time the offense was committed and the time of sentencing.4 A more difficult situation arises when the defendant is convicted of two offenses, the first committed before, and the second after, a revised edition of the Guidelines Manual becomes effective. The guidelines direct the courts to apply the revised Manual to both offenses.5 The circuit courts are split as to whether this violates the Ex Post Facto Clause.6 This Comment concludes that the provision requiring this result, ? 1B1.11(b)(3), is unconstitutional. The Ex Post Facto Clause provides simply, "No ... ex post facto Law shall be passed."7 This prohibition is understood to extend to a special class of criminal laws -those that act retrospectively and to the disadvantage of the offender.8 "Critical to relief under the Ex Post Facto Clause is ... the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated."9 While notice ex ante is