In a decision published today, the Fifth Circuit vacated a sentence and remanded for resentencing because the district court used the wrong Guidelines Manual. The default rule is to use the Guidelines Manual in effect at sentencing. But, if that Manual produces a Guidelines range that is greater than the range produced by the Manual in effect on the date the defendant committed the underlying offense conduct, then the district court must use the earlier Guidelines Manual. Otherwise, an ex post facto violation occurs. So says the Supreme Court.
We are less than 48 hours from the release of the 2014 Guidelines Manual (and the unveiling of a new color!). Beginning Monday, that red 2013 Manual that you have carried around for the last 12 months should hit the shelf (not the trash). Well, not quite. Until the new Manual arrives, you'll need the 2013 Manual, along with these amendments.
But remember, as Myers demonstrates (that is the name of the Fifth Circuit case, for those that did not click on the hyperlink), if the offense was committed in a year different than the current Guidelines Manual, run the numbers in both Manuals. If the current Manual produces a higher range, shelve it for the earlier version. You'll save your client some time (hopefully), and your failure to raise the objection in the district court will not find its way into a published decision (e.g., Myers).
Incidentally, the appellate attorney in Myers did not raise this issue until the reply brief, which is a serious no-no that almost always ends in waiver. But the government, in this case a few tax lawyers from Washington D.C., did not press the issue, instead conceding error in a Rule 28(j) letter (but not plain error). That is a stand-up move that deserves mention. As does the Fifth Circuit's decision not only to consider the untimely issue, but also to find merit in it and remand the case for resentencing. This could have ended badly for the defendant if not for the Court's willingness to ignore procedural rules in favor of reaching the merits and, ultimately, the correct outcome. Good for the Fifth Circuit.