Tuesday, March 06, 2012

Misstatement in Plea Colloquy Narrowed Waiver; Ex Post Facto Applies to Advisory Guidelines, Overrides One-Book Rule

In United States v. Saferstein, 2012 WL 234408 (Jan. 26, 2012) (published Feb. 24, 2012), the Circuit held that (1) a District court's misstatement during the plea colloquy describing an appellate waiver more narrowly than provided by the plea agreement, had effect of narrowing the waiver; (2) retrospective application of a new guideline provision violates the Ex Post Facto Clause notwithstanding Guidelines' advisory character; and (3) “one-book rule” did not apply when doing so violated the Ex Post Fact Clause.

Saferstein pled guilty to one count of mail fraud, one count of wire fraud, and two counts of submitting false tax returns, based on his fraudulent operation of a telemarketing company over a period of seven years.

The plea agreement contained language that Saferstein “voluntarily and expressly waived all rights to appeal or collaterally attack” his conviction, subject to several exceptions. The waiver was “not intended to bar the assertion of constitutional claims that the relevant case law holds cannot be waived.” At the plea colloquy, the district court misstated the provision concerning constitutional claims, stating that the waiver “of course, is not intended to bar you from raising constitutional claims, and only the Court can decide whether they are constitutional claims or some other kind of claim.”

The Third Circuit held that the court’s statement during the colloquy created ambiguity which did not exist in the plain text of the plea agreement. Given that ambiguity and that plea agreements must be construed to protect the defendant as the weaker bargaining party, the Court found that the waiver must be construed narrowly, permitting Saferstein to raise constitutional claims on appeal.

The constitutional issue Saferstein raised was an ex post facto claim. Saferstein claimed that his sentencing, which was based on the 2009 Guidelines Manual, violated the ex post facto clause because the mail and wire fraud counts occurred in December 2002 and June 2003, and the base offense level for fraud under the Guidelines was increased on November 1, 2003. Both counts for submitting false tax returns occurred after that date.

According to the one-book rule, when a “defendant is convicted of two offenses, the first committed before, and the second after, a revised edition of the Guidelines Manual became effective, the revised edition of the Guidelines Manual is to be applied to both offenses.” § 1B1.11(b)(3). However, in United States v. Bertoli, 40 F.3d 1384, 1405 (3d Cir.1994), the Court previously held that the ex post facto clause requires that a sentencing court apply the Guidelines Manual in effect at the time the offense was committed if retroactive application of the later Manual would result in harsher penalties, even if the counts are grouped (but noting “ex post facto concerns are assuaged when counts are properly grouped under § 3D1.2(d) as ‘continuing, related conduct’”).

In this case, the sentencing court applied the Guidelines in effect when the false tax returns were submitted to the IRS, even though those counts were not grouped with the mail and wire fraud counts. As a result, application of the later edition of the Guidelines violated the ex post facto clause.

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