Under the Feeney Amendment, upon a resentencing after remand, the district court is required to apply the Guidelines that were in effect at the time of the original sentencing. In other words, the defendant is not entitled to the benefit of any later, more favorable, changes in sentencing law. Does this violate the Ex Post Facto Clause? No.
[T]he application of the Feeney Amendment to the Bordons’ sentences does not violate the Ex Post Facto Clause. In Hock v. Singletary, this Court explained, “The Ex Post Facto Clause operates not to protect an individual's right to less punishment, but rather as a means of assuring that an individual will receive fair warning of criminal statutes and the punishments they carry.” The Feeney Amendment requires that the Sentencing Guidelines in place at the Bordons’ original sentencing be applied on remand.
In this case, the Amendment does not impose a greater sentence on the Bordons, but merely declines to grant them a favorable change in the law that occurred after they committed their crime. In Johnson v. United States, the Supreme Court explained that in order to prevail on an ex post facto claim, a defendant “must show both that the law he challenges operates retroactively (that it applies to conduct completed before its enactment) and that it raises the penalty from whatever the law provided when he acted.” The Feeney Amendment does not raise the penalty from what it was at the time the Bordons committed their crime, and therefore does not violate the Ex Post Facto Clause. When the Sentencing Commission revised the guideline associated with money laundering, U.S.S.G. § 2S1.1, it did not indicate that the amendment should be applied retroactively. Accordingly, the district court properly used the 1998 version of U.S.S.G. § 2S1.1 because that was the version of the Guidelines in effect on the date of the Bordons’ previous sentencing, prior to their first and second appeals.
United States v. Bordon (CA11).