Counterfeiting case.
Two issues:
* Did dist ct violate Ex Post Facto Clause by calculating GLs with an amendment to 2B5.1 that went into effect b/t time of offense and sentencing, so defendant received a harsher sentence than would have applied at time of offense?
* Did dist ct err by not ordering fed sentence to run concurrently with undischarged state sentence (in contravention of 5G1.3(b))?
Conclusion:
* Remand necessary b/c Ex Post Facto Clause had been violated.
Reasoning:
* COA considered whether the dist ct erred in using 2B5.1 instead of 2B1.1 to calculate offense level. Usually, GLs in effect at time of sentencing apply. 2B1.1 had been standard. 2B5.1 had commentary excluding the D's offense. But COA noted that 2B1.1 was not clearly applicable. There was ambiguity, but most cts had been using 2B1.1.
* In response to the confusion, Sentencing Commission had issued an amendment (731) that amended 2B5.1 to include explicitly the D's offense. The amendment became effective Nov. 1, 2009.
* The D argued that using the amended version of 2B5.1, which took effect b/t the time of the offense and sentencing, violated the Ex Post Facto Clause.
* If a revision to the GLs changes the legal consequences of an offense that occurred before the revision took effect---to the detriment of the D---the GLs in effect at the time of the offense must apply.
* Here, 2B1.1 provided an offense level 5 levels lower than that under 2B5.1. So there was an ex post facto violation.
* The gov conceded the ambiguity of which GL section would apply, but argued that the amendment simply clarified what was always intended. COA rejected this argument. 2B1.1 was the GL cts had been using. And Commission did not label the amendment a "clarifying" amendment. Rule of lenity had required using 2B1.1.
* On the issue of concurrent or consecutive time, the COA used plain-error review b/c D had failed to object in dist ct. 5G1.3(b) did not apply b/c state conviction did not increase federal GLs. Federal conduct was separate from the conduct that led to the state conviction (though both were counterfeiting offenses). Dist ct properly exercised its discretion under 5G1.3(c).
