The Third Circuit has turned away the argument that the maximum sentence for pre-Booker criminal conduct is what the Sentencing Guidelines would permit based on only admitted or jury-found facts. The defendant in United States v. Pennavaria argued that, at the time of his offense, the actual maximum punishment statutorily and constitutionally permitted was the one mandated by the Sentencing Guidelines without judicial factfinding (as confirmed in the Sixth Amendment ruling in Booker). Application of Booker's remedy holding to such conduct effectively increases that maximum punishment to the maximum set forth in the statute of conviction, in violation of Ex Post Facto and due process principles. The Third Circuit rejected this argument, reasoning that the Booker court directed application of both the Sixth Amendment and remedy rulings to pending cases and that defendants had "fair" -- although, it seems, mistaken -- warning pre-Booker that they were subject to the maximum punishment set forth in the statute of conviction based on judge-found facts.
Still alive in the Third Circuit is the related Ex Post Facto argument that punishment for pre-Booker criminal conduct is capped at the Guidelines range as determined with judicial factfinding and without any upward departure.