FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS HON. TIMOTHY S. HILLMAN, U.S. DISTRICT JUDGE.
Elizabeth A. Billowitz for appellant.
R. De Vincentis, Assistant United States Attorney, with whom
Andrew E. Lelling, United States Attorney, was on brief, for
Thompson, Boudin, and Kayatta, Circuit Judges.
KAYATTA, CIRCUIT JUDGE.
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.
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 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.
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) of 40. That offense level, nine
levels higher than the AOL for the two more recent grouped
offenses,  drove the calculation of the TOL to 37,
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.
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
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.
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).
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). The Guidelines also set forth what we 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 ...