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United States v. Mantha

United States Court of Appeals, First Circuit

December 10, 2019

STEPHEN MANTHA, Defendant, Appellant.


          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.

          Before Thompson, Boudin, and Kayatta, Circuit Judges.


         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.


         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 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) 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 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).



         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 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. ยง 1B1.11 cmt. background. Viewed in the aggregate, these rules call for the approach taken by the district ...

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