Another circuit decision failing to grapple with the ex post impact of Booker

Last year, the Seventh Circuit ruled in Demaree that, since the federal sentencing guidelines are now advisory after Booker, ex post facto doctrines no longer preclude applying the most recent guidelines even when they call for a longer sentence than the guidelines applicable at the time of the offense (basics here, commentary here).  However, as detailed here and here, the implications of Booker for pre-Booker ex post facto doctrines has been woefully under-examined as other district and circuit courts have failed to consider if Booker might impact pre-Booker ex post doctrines.

Today the Second Circuit in US v. Kilkenny, No. 05-6847 (2d Cir. July 7, 2007) (available here), provides another example of unthinking application of pre-Booker ex post doctrines in a post-Booker world.  Though the Kilkenny opinion provides an extended discussion of the purposes and history of the ex post facto clause, it does not even consider whether and how Booker‘s change in the guidelines’ legal force could change how ex post doctrines are now to be applied in federal sentencing proceedings.