United States v. Mantha ( 2019 )

United States Court of Appeals
For the First Circuit
No. 18-1951
UNITED STATES OF AMERICA,
Appellee,
v.
STEPHEN MANTHA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Timothy S. Hillman, U.S. District Judge]
Before
Thompson, Boudin, and Kayatta,
Circuit Judges.
Elizabeth A. Billowitz for appellant.
Alexia R. De Vincentis, Assistant United States Attorney,
with whom Andrew E. Lelling, United States Attorney, was on brief,
for appellee.
December 10, 2019
KAYATTA, Circuit Judge. This appeal concerns the
interaction between the Sentencing Guidelines' grouping rules, the
one-book and multiple-offense rules, and the U.S. Constitution's
Ex Post Facto Clause. In calculating the offense level for an
offense committed in 2001, the district court used the 2016
Guidelines Sentencing Manual applicable to two ungrouped, later-
committed offenses to which the defendant also pleaded guilty under
the same indictment. The 2016 version of the manual, as compared
to the version in effect in 2001, resulted in a higher Total
Offense Level (TOL). In a case of first impression in this
circuit, we find that application of the subsequent manual to the
prior, ungrouped offense violated the Ex Post Facto Clause. We
further find that the district court plainly erred in providing no
justification for the resulting upward variance.
I.
In approximately 2001, Stephen Mantha molested a child
who was then between six and eight years old. Mantha also recorded
the molestation on a VHS tape. Fifteen years later, between late
2015 and early 2016, Mantha's employer, the U.S. Postal Service,
caught him searching for and viewing child pornography on his
workplace computer. A subsequent search of his home turned up the
recording of the 2001 molestation and electronic storage devices
containing additional child pornography. Mantha eventually
entered a straight guilty plea to three offenses: (1) sexual
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exploitation of a child in violation of 18 U.S.C. § 2251(a)
resulting from the 2001 incident; (2) access with intent to view
child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B),
(b)(2) resulting from the 2015–2016 internet searches; and
(3) possession of child pornography also in violation of 18 U.S.C.
§ 2252A(a)(5)(B), (b)(2) resulting from the 2016 possession of
electronic storage devices.
The Presentence Investigation Report (PSR) prepared by
the Probation Officer grouped the second (2015–2016 internet
searching) and the third (2016 possession) offenses, but not the
first (2001 exploitation) because the 2001 offense was
insufficiently related to the more recent two offenses. See
U.S.S.G. § 3D1.2 (identifying when to group closely related
offenses); see also id. § 2G2.1 (providing the offense level for
sexual exploitation of a minor by production of sexually explicit
visual material); id. § 3D1.2(d) (excluding offenses covered by
§ 2G2.1 from grouping on the basis of ongoing behavior or aggregate
harm). All parties agree that this grouping -- and
ungrouping -- was correct. The PSR nevertheless employed the 2016
version of the Guidelines manual to calculate the applicable
offense levels for both the two grouped offenses and for the
ungrouped 2001 offense. Under the 2016 manual, by virtue of a
2004 amendment, see id. app. C, amend. 664 (effective Nov. 1,
2004), that 2001 offense generated an adjusted offense level (AOL)
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of 40.1 That offense level, nine levels higher than the AOL for
the two more recent grouped offenses,2 drove the calculation of
the TOL to 37,3 and resulted in a Guidelines Sentencing Range (GSR)
of 210 to 240 months. Under the pre-amendment version of the
manual in effect at the time of the 2001 offense, the AOL for that
offense would have been 33, which would have resulted in a lower
GSR of 121 to 151 months.
Both Mantha and the government objected to the use of
the 2016 manual as applied to the 2001 exploitation offense,
agreeing that, in the words of the government, "it would be a
violation of the [Ex Post Facto] clause to apply the present
version of the guidelines to conduct that occurred in 2001." The
district court apparently viewed the matter otherwise, stating
only that "I've spent a good part of the morning talking with
counsel for the probation office, [and] I am going to keep the
offense level and category the same." The court sentenced Mantha
to 196 months, a downward variance from the PSR's GSR but an upward
1 As relevant here, the amendment raised the base offense
level (BOL) under § 2G2.1(a) from 27 to 32 and created a new two-
level enhancement, § 2G2.1(b)(2)(A), for offenses involving sexual
contact. Two other enhancements, for four and two levels,
respectively, applied under both the pre-2004 and post-2004
manuals. See U.S.S.G. § 2G2.1(b)(1)(A), (5) (2016).
2 By operation of § 3D1.4 (instructing how to combine
ungrouped offenses), the more recent offenses did not affect
Mantha's TOL in any way other than by bringing the newer version
of the manual into play.
3 Mantha received a three-level reduction for acceptance of
responsibility under § 3E1.1(a), (b).
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variance from the calculation for which the parties advocated.
When the government asked whether the sentence would have been the
same under the lower GSR, the court said, "I thought about that,
and I believe that would have been the sentence that I was going
to impose under either scenario." The court gave no explanation
for why it chose the 196-month sentence, or for why it would have
done so even if it knew it to be upwardly variant.
Mantha timely appealed. We review de novo a preserved
claim that application of a particular version of the Guidelines
violated the Ex Post Facto Clause. United States v. Goergen, 683
F.3d 1, 3 (1st Cir. 2012).
II.
A.
We look first to see if the Guidelines themselves support
the approach taken by the district court, apart from any
limitations imposed by the Ex Post Facto Clause. The Guidelines
adopt what we call the "one-book rule": "The Guidelines Manual in
effect on a particular date shall be applied in its entirety."
U.S.S.G. § 1B1.11(b)(2).4 The Guidelines also set forth what we
4 The one-book rule also states that, "if a court applies an
earlier edition of the Guidelines Manual, the court shall consider
subsequent amendments, to the extent that such amendments are
clarifying rather than substantive changes." Id.; see also United
States v. Rodriguez, 630 F.3d 39, 42 (1st Cir. 2010). There is no
indication here that the district court was using the 2016 manual
only for this purpose.
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call the "multiple-offense rule": "If the 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." Id. § 1B1.11(b)(3). The commentary to the multiple-
offense rule states that "the approach set forth in
[§ 1B1.11(b)(3)] should be followed regardless of whether the
offenses of conviction are the type in which the conduct is grouped
under § 3D1.2(d)." Id. § 1B1.11 cmt. background. Viewed in the
aggregate, these rules call for the approach taken by the district
court, subject to one caveat: The Guidelines also warn that (of
course) the manual in effect at the time of sentencing should not
be used if doing so "would violate the ex post facto clause." Id.
§ 1B1.11(b)(1).
The Constitution states that "[n]o . . . ex post facto
Law shall be passed." U.S. Const. art I, § 9, cl. 3. The Supreme
Court has held that application of a version of the Sentencing
Guidelines adopted after an offense is committed violates the Ex
Post Facto Clause where the newer Guidelines result in a higher
GSR than the version in effect at the time the offense was
committed, even under the post-Booker advisory Guidelines regime.
Peugh v. United States, 569 U.S. 530, 549–50 (2013); see United
States v. Booker, 543 U.S. 220, 245 (2005).
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In a case decided shortly after Peugh, our circuit
nevertheless held that application of the one-book and multiple-
offense rules to a series of grouped offenses does not violate the
Ex Post Facto Clause even if the earlier grouped offense occurred
before an amendment to the manual increasing the offense level for
that offense. United States v. Pagán-Ferrer, 736 F.3d 573, 598
(1st Cir. 2013). In that case, the defendant was convicted of
civil-rights violations and obstruction of justice for lying to
investigators in 2008 (post-amendment) about a 2003 assault (pre-
amendment). Id. 595–96. We reasoned as follows:
The Sentencing Guidelines' one book and
grouping rules placed [the defendant] on
notice that if he committed a closely related
offense in the future, his sentence for both
offenses would be calculated pursuant to the
Guidelines in effect at the time of that
later, related offense conduct. . . .
Accordingly, the change in [the defendant's]
offense level is properly viewed not as a
consequence of an ex post facto violation, but
as the direct result of his decision to engage
in closely related offense conduct [after the
amendment].
Id. at 599. Every circuit except the Ninth agrees with this
holding. See id. at 598 (collecting cases); United States v.
Siddons, 660 F.3d 699, 706–07 (3d Cir. 2011); see also United
States v. Wijegoonaratna, 922 F.3d 983, 992–93 (9th Cir. 2019).
Mantha's case differs from Pagán-Ferrer in a crucial
way: his offenses were not grouped. The Guidelines commentary
states that this distinction is irrelevant, reasoning that "[t]he
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ex post facto clause does not distinguish between groupable and
nongroupable offenses." U.S.S.G. § 1B1.11 cmt. background. But
in Pagán-Ferrer we adopted the fiction that prior notice sufficient
to satisfy the Ex Post Facto Clause could be presumed in the case
of groupable offenses because such offenses, by definition, are
"closely related." See Pagán-Ferrer, 736 F.3d at 599; U.S.S.G.
§ 3D1.2. So to concede that the offenses are not groupable is to
concede that they are not "closely related," thereby attenuating
the connection that served in Pagán-Ferrer to justify what would
have otherwise seemed to be a clear ex post facto violation.
Arguably, the offenses here, while not closely related
(they were, after all, fifteen years apart and did not involve the
same victim), could be seen as related in some sense; one involves
abuse of a child and the other possession of visual depictions of
another person's abuse of a child. But as we move down the spectrum
from "closely related" to "related," the fiction of notice in the
case of groupable offenses, however plausible, approaches utter
fantasy, and would seem to have no stopping point. After all,
almost all crimes committed by the same person are related in some
significant sense.
The Guidelines' commentary justifies the application of
a later and stiffer Guidelines manual to an earlier ungrouped
offense by observing that misconduct predating a manual change may
be considered in sentencing for a post-amendment offense if the
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earlier misconduct qualifies as "relevant conduct" in its
relationship to the more recent offense. See U.S.S.G. § 1B1.11
cmt. background (citing the consideration of pre-amendment
uncharged embezzlement in sentencing for related post-amendment
embezzlement). But conduct is treated as "relevant conduct"
precisely because it is closely related to the primary offense.
See id. § 1B1.3 (defining relevant conduct); see also id.
§ 3D1.2(c). So the analogy drawn by the commentary fits poorly
the case at hand -- the treatment of prior, largely unrelated
conduct. Moreover, the commentary, drafted before Peugh, seems to
overlook the difference between considering prior conduct in
sentencing for a later offense and (as in this case) actually
sentencing for the prior conduct as an offense.
In any event, even if we were to accept the notion that
a stiffer, amended manual could be applied to an earlier offense
based on the fact that the underlying conduct could have
alternatively qualified as relevant conduct to a later offense,
that notion would find no application in this case. Here, the
government does not argue that Mantha's 2001 conduct could have
been considered as relevant conduct in sentencing for the 2015–
2016 possession and access offenses. Nor do we see why it would
have been. So the Guidelines commentary does not solve the
constitutional problem at issue here.
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In finding the tenuous relatedness between Mantha's
earlier and later crimes to be material, we also have in mind the
fact that the Ex Post Facto Clause advances purposes beyond that
of providing notice. It serves the cause of "fundamental fairness"
by "having the government abide by the rules of law it establishes
to govern the circumstances under which it can deprive a person of
his or her liberty or life." Peugh, 569 U.S. at 544 (quoting
Carmell v. Texas, 529 U.S. 513, 533 (2000)). Simply telling a
person that those rules may change should not suffice to circumvent
the ex post facto bar. Otherwise, that bar could be effectively
eliminated altogether by the enactment of a broad, catch-all
caveat.
Three of the four circuits that have addressed the
question now before us have held that application of the one-book
and multiple-offense rules to ungrouped offenses constitutes an ex
post facto violation. See United States v. McMillian, 777 F.3d
444, 449 (7th Cir. 2015); United States v. Saferstein, 673 F.3d
237, 244 (3d Cir. 2012); United States v. Lacefield, 146 F. App'x
15, 22 (6th Cir. 2005). The only circuit court opinion to the
contrary predates Peugh and relied almost exclusively on the
Guidelines commentary in reaching that result. See United States
v. Butler, 429 F.3d 140, 153–54 (5th Cir. 2005). Our focus on
groupability in Pagán-Ferrer invites the approach adopted by the
majority of these other circuits, and we now join them expressly.
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Our holding today is a narrow one. We leave undisturbed
the rule laid out in Pagán-Ferrer. Furthermore, we do not say
that application of the multiple-offense rule to ungrouped conduct
will pose a problem in all circumstances. Different permutations
may necessitate a different analysis. We hold only that, under
the present circumstances, where the TOL is raised by application
of a Guidelines amendment to a pre-amendment offense based solely
on the existence of post-amendment offenses that are not closely
related to the earlier offense, use of the post-amendment
Guidelines is unconstitutional.
B.
We now turn to the government's argument for why Mantha's
sentence should be upheld notwithstanding the ex post facto
violation. The government relies on the district court's statement
that "I believe [196 months] would have been the sentence that I
was going to impose under either scenario."5 The government
5 In its written statement of reasons, the court stated that
"196 months is sufficient, but not greater than necessary, to
provide adequate punishment," which merely tracks the language of
18 U.S.C. § 3553(a). The court then reiterated that it "would
impose this sentence whether an earlier version of the Guideline
Manual was applicable, as 196 months is the appropriate sentence
based upon the crimes committed."
Although required by statute, see id. § 3553(c)(2); 28 U.S.C.
§ 994(w)(1), the written statement-of-reasons form "serves a
largely administrative purpose" by "facilitat[ing] data
collection," United States v. Vázquez-Martínez, 812 F.3d 18, 25
(1st Cir. 2016). We therefore place no weight on the district
court's written statement.
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argues, citing Peugh, 569 U.S. at 550 n.8, that the ex post facto
error was therefore harmless beyond a reasonable doubt. Cf. United
States v. Acevedo-Hernández, 898 F.3d 150, 172 (1st Cir. 2018);
United States v. Tavares, 705 F.3d 4, 25 (1st Cir. 2013).
In making this harmless-error argument, the government
presumes that the district court's sentence stood independently on
each of two legs: a nonvariant (or downwardly variant) application
of the new Guidelines manual, and an upward variance from the GSR
calculated under the older manual. Thus, reasons the government,
it makes no difference that the former leg was infirm.
But this reasoning only works if the second leg itself
suffers from no disqualifying infirmity. And it clearly does
suffer from such an infirmity because the record contains no
statement of reasons for the upward variance. When sentencing, a
court must "state in open court the reasons for its imposition of
the particular sentence," and for sentences outside the GSR, the
stated reasons must be "specific." 18 U.S.C. § 3553(c)(2); see
also Gall v. United States, 552 U.S. 38, 46 (2007). "[T]he greater
a deviation from the GSR, the more compelling the sentencing
court's justification must be." United States v. Del Valle-
Rodríguez, 761 F.3d 171, 177 (1st Cir. 2014). Here, the district
court gave no explanation whatsoever for why it would impose a
196-month sentence even if the upper end of the GSR were forty-
five months less than that. The government contends that the
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reasons for the sentence can be "inferred from the record," United
States v. Rivera-Gonzalez, 809 F.3d 706, 712 (1st Cir. 2016),
because the government provided defendant-specific reasons for a
harsher sentence at the sentencing hearing. The record lacks any
indication that the district court was adopting those reasons, and
in the context of a substantially upwardly variant sentence we
decline to impute the government's justification to the court and
thereby relieve the court of its statutory obligation.
The government questions whether Mantha preserved in the
district court his objection to the adequacy of the court's
explanation for the upward variance. But even assuming plain-
error review applies, Mantha would prevail on this point. See id.
at 711 (setting out the plain-error standard). Section 3553(c) is
unambiguous and its requirement for justifying a variant sentence
is well known. Indeed, we have previously found similar omissions
in upward-variance cases to constitute plain error. See United
States v. Montero-Montero, 817 F.3d 35, 37 (1st Cir. 2016)
(vacating a 60-month sentence where the GSR was 6–12 months and
the court gave "no coherent explanation" for the variance); Rivera-
Gonzalez, 809 F.3d at 712 (vacating a 360-month sentence where the
GSR was 60 months and the court gave "no explanation" for the
variance). We have upheld, under plain-error review, "short and
simple" explanations for small upward variances, United States v.
González-Rodríguez, 859 F.3d 134, 136, 139 (1st Cir. 2017)
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(affirming a 33-month sentence where the GSR was 24–30 months and
the court explained that the defendant's "conduct [flouted] the
law and . . . represent[ed] a risk to the community" (alterations
in original)), but here there is no explanation at all. The
possibility of prejudice and unfairness in this situation cannot
be discounted. See Montero-Montero, 817 F.3d at 38; Rivera-
Gonzalez, 809 F.3d at 712. We cannot rule out the possibility of
a lower sentence until the district court explains its reasons for
selecting what it will now know is an upwardly variant sentence.
None of this is to say that the sentence assigned by the
district court is substantively precluded as excessive. For that
reason, we reject Mantha's argument that a 196-month sentence would
necessarily represent an abuse of discretion even if properly
explained.
III.
For the foregoing reasons, we vacate the district
court's sentence and remand for resentencing consistent with this
opinion.
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