Application of PROTECT Act’s de novo standard of review to case pending on appeal at time of Act’s passage does not violate Ex Post Facto Clause

SENTENCING United States v. Andrews, No. 04-3010, ___ F.3d ___ (10th Cir. May 8, 2006)(Kansas). Appeal of sentence for bank robbery committed in violation of 18 U.S.C. § 2113(a). HELD: (1) Application of de novo standard of review on appeal, passed as part of PROTECT Act while defendant’s case was pending on direct appeal, did not violate Ex Post Facto Clause of Constitution. Application of PROTECT Act’s de novo standard does not implicate Ex Post Facto Clause because Act made only procedural, not substantive change in law. (2) Where defendant’s initial sentence was 120 months, but on remand was raised to 151 months on order of court of appeals, difference between sentences is significant. To permit such sentence to stand, when imposed in error on order of court of appeals in violation of holding in United States v. Booker, 543 U.S. 220 (2005), that sentencing guidelines are not mandatory, would be miscarriage of justice. Thus, district court’s sentencing error is plain error that requires remand for resentencing. Read the opinion here.