Ex post facto, due process and cases in the pipeline

In this post and in my testimony in November to the US Sentencing Commission, I spotlighted ex post facto issues as a reason for Congress and the USSC to react cautiously to Booker.  Because it seems unlikely that any “Booker fix” can be applied to cases currently in the pipeline, I continue to fear that any short-term legislative changes in coming weeks “risks sowing greater confusion and uncertainty — and lots and lots of litigation — about applicable federal sentencing laws and practices.”

And yet, even before we see any legislative response to Booker, we should all be fully cognizant of the legal doctrines which may limit the immediate application of the “judicial fix” to Blakely that Justice Breyer has engineered through the Booker decision.  As discussed by Peter Goldberger at White Collar Crim Prof Blog here and as noted by commentors here, there are strong due process arguments that, in Peter’s words, “a post-Booker sentence for a crime committed prior to Jan. 12, 2005, cannot be higher than the top of the applicable guideline range … [and thus, for] some time to come, post-Booker discretion must, as a matter of constitutional law, be a one-way ratchet favoring lower sentences.”

Though I have not (yet) fully thought through the issue, I think Peter may be right that due process doctrines prevent judges from using their new post-Booker discretion to impose sentences higher than the guidelines in cases currently “in the pipeline.”  But I imagine there may be some, especially prosecutors, who do not agree with this due process/ex post analysis.  I hope perhaps the comments to this post might be a forum for debating this very important issue concerning how the tens of thousands of cases in the federal sentencing pipeline can now be sentenced.