United States v. Richard F. Swanger, United States of America v. Steven C. George, United States of America v. John A. George

Eighth Circuit

United States v. Richard F. Swanger, United States of America v. Steven C. George, United States of America v. John A. George

919 F.2d 94, 1990 U.S. App. LEXIS 20217

CourtCourt of Appeals for the Eighth Circuit

DecidedNovember 19, 1990

Docket90-1583, 90-1658 and 90-1659

StatusPublished

Cited by20 cases

This text of 919 F.2d 94 (United States v. Richard F. Swanger, United States of America v. Steven C. George, United States of America v. John A. George) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States v. Richard F. Swanger, United States of America v. Steven C. George, United States of America v. John A. George, 919 F.2d 94, 1990 U.S. App. LEXIS 20217 (8th Cir. 1990).

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Opinion

PER CURIAM.

This opinion supplements our order of October 25, 1990. The defendants were sentenced under the Sentencing Guidelines pursuant to 18 U.S.C. § 3553(a)(4) which provides that:

The court, in determining the particular sentence to be imposed, shall consider—

* * * sf: sf: sfc

(4) the kinds of sentence and the sentencing range established for the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines that are issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a)(1) and that are in effect on the date the defendant is sentenced.

18 U.S.C. § 3553(a)(4) (1989) (emphasis added).

In sentencing the defendants the district court applied the Guidelines containing the November 1, 1989, amendments. On appeal the government has conceded error and agrees that the case should be remanded for resentencing. Because of the government’s concession, our previous order failed to specify the reasons for remand. In the present case the sentencing of the three defendants took place subsequent to the effective dates of the amendments to the Guidelines. However, the offenses were committed prior to these amendments. As a result of the district court’s use of the amended Guidelines in effect at the time of sentencing instead of those in effect at the time of the offense, the defendants’ offense levels were increased. Appellee’s Brief at 7-9. Under these circumstances, sentencing under the amended Guidelines violated the ex post facto clause of the Constitution. See Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987); United States v. Suarez, 911 F.2d 1016, 1021 (5th Cir.1990).

Since the government does not oppose the remand for resentencing, this court now affirms the judgments of conviction but vacates the sentences and remands the cases to the district court for resentencing.

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PER CURIAM.

This opinion supplements our order of October 25, 1990. The defendants were sentenced under the Sentencing Guidelines pursuant to 18 U.S.C. § 3553(a)(4) which provides that:

The court, in determining the particular sentence to be imposed, shall consider—

* * * sf: sf: sfc

(4) the kinds of sentence and the sentencing range established for the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines that are issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a)(1) and that are in effect on the date the defendant is sentenced.

18 U.S.C. § 3553(a)(4) (1989) (emphasis added).

In sentencing the defendants the district court applied the Guidelines containing the November 1, 1989, amendments. On appeal the government has conceded error and agrees that the case should be remanded for resentencing. Because of the government’s concession, our previous order failed to specify the reasons for remand. In the present case the sentencing of the three defendants took place subsequent to the effective dates of the amendments to the Guidelines. However, the offenses were committed prior to these amendments. As a result of the district court’s use of the amended Guidelines in effect at the time of sentencing instead of those in effect at the time of the offense, the defendants’ offense levels were increased. Appellee’s Brief at 7-9. Under these circumstances, sentencing under the amended Guidelines violated the ex post facto clause of the Constitution. See Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987); United States v. Suarez, 911 F.2d 1016, 1021 (5th Cir.1990).

Since the government does not oppose the remand for resentencing, this court now affirms the judgments of conviction but vacates the sentences and remands the cases to the district court for resentencing.

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919 F.2d 94, 1990 U.S. App. LEXIS 20217, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-richard-f-swanger-united-states-of-america-v-steven-c-ca8-1990.

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