PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellant,

v.  No. 09-4343

DERRICK E. LEWIS,

Defendant-Appellee. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 09-4474

DERRICK E. LEWIS,

Defendant-Appellant. 

Appeals from the United States District Court

for the Eastern District of Virginia, at Richmond.

Henry E. Hudson, District Judge.

(3:08-cr-00006-HEH-1)

Argued: March 24, 2010

Decided: May 27, 2010

Before KING and GREGORY, Circuit Judges, and

Joseph R. GOODWIN, Chief United States District Judge

for the Southern District of West Virginia,

sitting by designation.
Affirmed by published opinion. Judge King wrote the majority opinion, in which Judge Gregory joined. Judge Goodwin

wrote a separate opinion concurring in part and dissenting in

part. 

COUNSEL

ARGUED: David Brian Goodhand, OFFICE OF THE

UNITED STATES ATTORNEY, Alexandria, Virginia, for

Appellant/Cross-Appellee. Paul Geoffrey Gill, OFFICE OF

THE FEDERAL PUBLIC DEFENDER, Richmond, Virginia,

for Appellee/Cross-Appellant. ON BRIEF: Dana J. Boente,

United States Attorney, Alexandria, Virginia, Kevin C. Nunnally, Special Assistant United States Attorney, OFFICE OF

THE UNITED STATES ATTORNEY, Richmond, Virginia,

for Appellant/Cross-Appellee. Michael S. Nachmanoff, Federal Public Defender, Alexandria, Virginia, for

Appellee/Cross-Appellant.

OPINION

KING, Circuit Judge:

Derrick E. Lewis appeals from his conviction and sentence

in the Eastern District of Virginia for unlawful possession of

a firearm by a convicted felon, in contravention of 18 U.S.C.

§ 922(g)(1). After Lewis committed the offense of conviction,

but before he was sentenced, the Sentencing Guidelines were

amended to include a higher base offense level for the

offense, resulting in an advisory Guidelines range that was

nearly double that calculated under the Guidelines in effect at

the time of his offense. After determining that application of

the amended 2008 Guidelines would contravene the Ex Post

Facto Clause of the Constitution, the district court applied the

2005 Guidelines in effect at the time of the offense of convic2 UNITED STATES v. LEWIS
tion. See United States v. Lewis, 603 F. Supp. 2d 874 (E.D.

Va. 2009). The Government has appealed from the court’s Ex

Post Facto Clause ruling. Lewis has cross-appealed, contending that the court erred in denying his motion to suppress the

firearm underlying his conviction. As explained below, we

reject both contentions and affirm.

I.

A.

At approximately 11:00 p.m. on May 16, 2006, Lewis was

sitting in the driver’s seat of a vehicle parked in a residential

area in Richmond, Virginia.1 Three officers tasked with

searching for illegal firearms — Richmond Police Officer

Kevin Mills and two officers of the Virginia State Police —

parked their cruiser on the opposite side of the street from

Lewis’s car. Immediately thereafter, other officers arrived on

the scene, and several officers approached Lewis’s vehicle. At

that point, one of the officers looked into the vehicle’s passenger window and observed an open beer bottle in the front portion of the vehicle. Upon learning of the open beer bottle,

Officer Mills approached the driver-side window and

requested Lewis’s identification. When Lewis rolled down his

window to comply, Officer Mills detected "a faint odor of

burnt marijuana." J.A. 42.2 Mills immediately asked Lewis to

exit the vehicle, but he refused; Officer Mills then removed

Lewis from the vehicle. About thirty to sixty seconds had

elapsed between the officers’ arrival and Lewis’s removal

from the car.

After placing Lewis in handcuffs, the officers observed a

1Because the district court denied Lewis’s motion to suppress, we view

the evidence in the light most favorable to the Government. See United

States v. Branch, 537 F.3d 328, 337 (4th Cir. 2008). 

2Citations herein to "J.A. ____" refer to the contents of the Joint Appendix filed by the parties in this appeal. 

UNITED STATES v. LEWIS 3
semiautomatic, nine-millimeter handgun in plain view on the

front driver-side floorboard of Lewis’s vehicle. The firearm

was loaded and had an extended, high-capacity magazine.

Officer Mills then checked Lewis’s criminal history and

ascertained that he was a convicted felon. Because Virginia

law prohibits felons from possessing firearms, Lewis was

placed under arrest.

B.

On September 3, 2008, a superseding indictment was

returned in the Eastern District of Virginia, charging Lewis

with a single count of unlawfully possessing a firearm, in contravention of 18 U.S.C. § 922(g)(1) and (9).3

 On October 27,

2008, Lewis moved to suppress the evidence obtained from

his vehicle. At a suppression hearing conducted on October

29, 2008, the district court denied the suppression motion. As

an initial matter, the court concluded that the officers did not

need any form of suspicion in order to approach Lewis’s

parked vehicle and ask questions. The court then specifically

credited the testimony of Officer Mills, observing that only

Mills had observed the entire encounter and that none of the

defense witnesses’ testimony was "necessarily inconsistent

with that of" Mills. J.A. 133. 

On the sequence of events leading to Lewis’s arrest, the

district court found that Officer Mills knew that another officer had observed an open beer container inside the vehicle

and that Mills had detected the odor of marijuana emanating

from the vehicle when Lewis rolled down his window.

According to the court, the marijuana odor alone provided

"sufficient probable cause to search the vehicle. Certainly, it

3Section 922(g) of Title 18 prohibits any person "who has been convicted in any court of a crime punishable by imprisonment for a term

exceeding one year," 18 U.S.C. § 922(g)(1), or "who has been convicted

in any court of a misdemeanor crime of domestic violence," id.

§ 922(g)(9), from possessing a firearm in or affecting interstate commerce.

4 UNITED STATES v. LEWIS
was adequate to require the defendant to step out and to detain

him during the course of that search." J.A. 135. Accordingly,

the court ruled that the contested search and seizure was consistent with the Fourth Amendment and denied the motion to

suppress.

C.

Following a one-day jury trial, conducted on December 4,

2008, Lewis was convicted of possession of a firearm by a

convicted felon, in contravention of 18 U.S.C. § 922(g)(1).4

Thereafter, on January 28, 2009, the probation officer prepared and submitted a presentence investigation report (the

"PSR"), applying the 2008 edition of the Guidelines. That edition called for a base offense level of 20, which — when coupled with Lewis’s criminal history category of III — resulted

in an advisory Guidelines range of 41 to 50 months of imprisonment. The PSR’s base offense level calculation was predicated on section 2K2.1(a)(4)(B)(i) of the 2008 edition of the

Guidelines, which mandates an offense level of 20 if the

offense involved a "semiautomatic firearm that is capable of

accepting a large capacity magazine." That provision had

been added to the Guidelines as part of Amendment 691,

effective November 1, 2006 — after Lewis committed the

offense of conviction. Thus, in a section of the PSR entitled

"Ex Post Facto Consideration," the probation officer noted

that the 2005 Guidelines, which were in effect at the time of

the offense of conviction, would prescribe a base offense level

of 14 and an advisory Guidelines range of 21 to 27 months,

rather than the 41- to 51-month range prescribed by the 2008

edition. J.A. 226.

At the sentencing hearing on March 6, 2009, Lewis

objected to the PSR’s application of the 2008 Guidelines,

asserting that application thereof "essentially doubl[ed]" his

4The prosecution elected not to pursue the § 922(g)(9) aspect of the

indictment. See Principal & Resp. Br. of Appellee 13. 

UNITED STATES v. LEWIS 5
applicable sentencing range, in contravention of the Ex Post

Facto Clause. J.A. 151. In response, the Government maintained that the court’s use of the amended 2008 Guidelines

would not contravene the Ex Post Facto Clause, arguing that,

after the Supreme Court rendered the Guidelines advisory in

United States v. Booker, 543 U.S. 220 (2005), they were no

longer "law" to which the Clause applies. Alternatively, the

Government asked the court to vary upward to the sentencing

range reflected in the 2008 Guidelines, asserting that the

extended-capacity magazine possessed by Lewis posed "the

same peril" to the community in 2006 as it did in 2008. J.A.

157.

By its opinion of March 16, 2009, the district court ruled

that application of the 2008 Guidelines would contravene the

Ex Post Facto Clause. See United States v. Lewis, 603 F.

Supp. 2d 874 (E.D. Va. 2009). Beginning with what the

Guidelines refer to as "General Application Principles," the

court recognized that section 1B1.11 mandates use of the

Guidelines in effect at the time of sentencing, unless the sentencing court "determines that use of [that edition] would violate the ex post facto clause of the United States Constitution."

USSG § 1B1.11(b)(1) (2008). In that event, the Guidelines

instruct the court to apply the unamended Guidelines in effect

on the date the offense of conviction was committed. See id.

Turning to the merits of the Ex Post Facto Clause contention, the sentencing court concluded that application of the

2008 Guidelines in this case would result in a significant risk

of an increased sentence, thereby contravening the Ex Post

Facto Clause. See Lewis, 603 F. Supp. 2d at 879. The court

acknowledged that it would be "nudged in the direction of the

Guidelines" range if neither the PSR nor the arguments at sentencing yielded an "articulable basis to stray from the calculated guideline range." Id. Consequently, the court calculated

Lewis’s advisory sentencing range under the 2005 Guidelines,

which were in effect at the time of the offense of conviction,

and imposed a 27-month sentence.

6 UNITED STATES v. LEWIS
The Government timely noticed its appeal of the district

court’s Ex Post Facto Clause ruling, and Lewis pursues a

cross-appeal on the denial of his motion to suppress. We possess jurisdiction pursuant to 18 U.S.C. § 3742(b) and 28

U.S.C. § 1291.

II.

In assessing a district court’s decision on a motion to suppress, we review factual findings for clear error and legal

determinations de novo. See United States v. Branch, 537

F.3d 328, 337 (4th Cir. 2008). In so doing, we must construe

the evidence in the light most favorable to the prevailing

party, see id., and give "due weight to inferences drawn from

those facts by resident judges and law enforcement officers,"

United States v. Humphries, 372 F.3d 653, 657 (4th Cir.

2004) (internal quotation marks omitted). We review de novo

questions of law, including whether the application of a

Guidelines amendment contravenes the Ex Post Facto Clause.

See United States v. Nale, 101 F.3d 1000, 1003 (4th Cir.

1996). 

III.

We confront two issues in these appeals. First, in No. 09-

4474, Lewis maintains that the district court erred in denying

his motion to suppress the evidence seized in conjunction

with his arrest. Second, in No. 09-4343, the Government contends that the court erred at sentencing by concluding that the

Ex Post Facto Clause required it to apply the Guidelines in

effect in May 2006 when Lewis committed the offense of

conviction. As explained below, we reject both contentions

and affirm.

A.

Lewis contends on appeal that the district court erred in

denying his motion to suppress the firearm seized at the time

UNITED STATES v. LEWIS 7
of his arrest. According to Lewis, he was unconstitutionally

"seized" by the officers before Officer Mills detected marijuana in his vehicle. Lewis was not "seized," however, when

the officers approached his vehicle. See United States v. Weaver, 282 F.3d 302, 309 (4th Cir. 2002) ("It is axiomatic that

police may approach an individual on a public street and ask

questions without implicating the Fourth Amendment’s protections."). The officers were thus entitled to approach Lewis,

who was sitting in his parked car, late at night. As they

approached the vehicle, one of the officers related to Officer

Mills that there was an open beer bottle in the vehicle. Mills

then approached the driver-side window and asked Lewis for

identification. When Lewis rolled down his window to comply, Mills smelled the odor of marijuana emanating from the

vehicle. At that point, the officers possessed probable cause

to search the vehicle, see United States v. Humphries, 372

F.3d 653, 658 (4th Cir. 2004), and they were entitled to order

Lewis out of the vehicle while their search was accomplished,

see United States v. Sakyi, 160 F.3d 164, 169 (4th Cir. 1998).

Moreover, Lewis has not established that the district court

clearly erred in making the factual findings underlying its

suppression ruling. Specifically, although the court found that

the witnesses who testified on Lewis’s behalf were credible,

their testimony was not "necessarily inconsistent" with Officer Mills’s version of events. J.A. 133. Moreover, the court

was justified in relying on the testimony of Officer Mills

because he had presented the most comprehensive account of

Lewis’s arrest. In short, given the court’s unique opportunity

and ability to assess the credibility of the witnesses, we are

unable to say that it clearly erred in crediting Officer Mills’s

testimony. Thus, the court did not err in denying the motion

to suppress.

B.

By its appeal, the Government maintains that the district

court erred at sentencing when it ruled that the Ex Post Facto

8 UNITED STATES v. LEWIS
Clause required it to apply the Sentencing Guidelines in effect

when Lewis committed the offense of conviction in May

2006. The Guidelines direct a sentencing court to "use the

Guidelines Manual in effect on the date that the defendant is

sentenced," unless the court determines that to do so "would

violate" the Ex Post Facto Clause of the Constitution. USSG

§ 1B1.11(b)(1).5 In that event, the court is to "use the Guidelines Manual in effect on the date that the offense of conviction was committed." Id.6

The Ex Post Facto Clause prohibits retroactive laws that

create a "significant risk" of increased punishment for a

crime. Garner v. Jones, 529 U.S. 244, 255 (2000). In Miller

v. Florida, the Supreme Court determined that the Ex Post

Facto Clause barred the retroactive application of Florida’s

sentencing guidelines, when such application would have

resulted in a longer sentence than the offender would have

received at the time of the offense. See 482 U.S. 423, 435-36

(1987). After Miller was decided, several of our courts of

appeals likewise concluded that the Ex Post Facto Clause precluded retroactive application of severity-enhancing amendments to the federal Sentencing Guidelines. See, e.g., United

States v. Seacott, 15 F.3d 1380, 1385-86 (7th Cir. 1994);

United States v. Morrow, 925 F.2d 779, 782-83 (4th Cir.

1991). Accordingly, sentencing courts were prohibited from

applying Guidelines amendments at sentencing that increased

the punishment for an offense after its commission. 

In 2005, however, the Booker decision of the Supreme

Court rendered the Guidelines advisory. See United States v.

Booker, 543 U.S. 220, 245 (2005). Post-Booker, the courts of

5The Ex Post Facto Clause of the Constitution provides that "[n]o . . .

ex post facto Law shall be passed." U.S. Const. art. I, § 9, cl. 3. 

6Pursuant to the so-called "one book" rule, the sentencing court must

use an entire Guidelines Manual in effect on a particular date, rather than

combine provisions drawn from different editions. See USSG

§ 1B1.11(b)(2). 

UNITED STATES v. LEWIS 9
appeals have disagreed on whether the Ex Post Facto Clause

prohibits a sentencing court from retroactively applying

severity-enhancing Guidelines amendments. In United States

v. Turner, the D.C. Circuit recognized this disagreement and

ruled that such retroactive application contravenes the Ex Post

Facto Clause. See 548 F.3d 1094, 1100 (D.C. Cir. 2008). Two

years earlier, the Seventh Circuit had concluded, in United

States v. Demaree, that the Ex Post Facto Clause does not bar

retroactive application of severity-increasing Guidelines

amendments. See 459 F.3d 791, 795 (7th Cir. 2006). Although

we have previously recognized this circuit split, we have not

had occasion to rule on the issue. See, e.g., United States v.

Rooks, 596 F.3d 204, 214 n.11 (4th Cir. 2010).7

Because the Guidelines represent the crucial "starting

point," as well as the "initial benchmark," for the regimented

sentencing process employed by the sentencing courts within

this Circuit, see Gall v. United States, 552 U.S. 38, 49 (2007),

an increased advisory Guidelines range poses a significant

risk that a defendant will be subject to increased punishment.

Accordingly, as explained below, we join the D.C. Circuit in

concluding — as did the district court — that the retroactive

application of severity-enhancing Guidelines amendments

contravenes the Ex Post Facto Clause. See Turner, 548 F.3d

at 1100.

1.

It is undisputed that the Guidelines provision at issue in this

appeal was upwardly amended after Lewis committed the

offense of conviction. Under the 2005 Guidelines in effect at

the time of Lewis’s May 2006 arrest, his conduct — posses7

In post-Booker decisions, we have assumed without deciding that the

Ex Post Facto Clause prohibits the application of upwardly revised Guidelines. See, e.g., United States v. Iskander, 407 F.3d 232, 242 n.8 (4th Cir.

2005); United States v. Sinclair, 293 Fed. App’x 235, 236 (4th Cir. 2008)

(per curiam) (unpublished). 

10 UNITED STATES v. LEWIS
sion of a semiautomatic firearm capable of accepting an

extended-capacity magazine — corresponded with a maximum base offense level of 14. See USSG § 2K2.1(a)(6)(A)

(2005). Amendment 691, which took effect on November 1,

2006, created a higher base offense level for an offense

involving a "semiautomatic firearm that is capable of accepting a large capacity magazine." Thus, under the 2008 Guidelines in effect at the time of his sentencing, Lewis had a base

offense level of 20. See USSG § 2K2.1(a)(4)(B)(i) (2008). As

applied to Lewis, therefore, the 2008 Guidelines resulted in a

sentencing range of 41 to 51 months — nearly double the 21-

to 27-month range under the otherwise applicable 2005

Guidelines. 

2.

Given that the 2008 Guidelines retroactively increased the

penalty for Lewis’s conduct, the question we must resolve is

whether application of the amended 2008 Guidelines would

have resulted in a "significant" — rather than "speculative and

attenuated" — risk of an increased sentence. Garner v. Jones,

529 U.S. 244, 251-55 (2000). Under Garner, Lewis was not

required to show that the amended Guidelines on their face —

i.e., "by [their] own terms" — would have contravened the Ex

Post Facto Clause. Id. at 255. Rather, Lewis was permitted to

demonstrate that retroactive application of the amended

Guidelines, as applied to him through "practical implementation," posed a "significant risk of increasing his punishment."

Id.; see also United States v. Turner, 548 F.3d 1094, 1100

(D.C. Cir. 2008) ("The proper approach is therefore to conduct an ‘as applied’ constitutional analysis, not the sort of

facial analysis conducted [by the Seventh Circuit] in

Demaree." (internal citation omitted)). Thus, we need only

determine whether, practically speaking, application of the

2008 edition of the Guidelines would have created a significant risk of increased punishment for Lewis.8

8Our distinguished dissenting colleague primarily relies on the Seventh

Circuit’s decision in Demaree, as well as this Court’s more recent decision

UNITED STATES v. LEWIS 11
The Government concedes that Guidelines calculations

may "nudge[ ]" a court "toward the sentencing range" and

may "possibly encourage[ ]" courts to impose withinGuidelines sentences. Reply & Resp. Br. of Appellant 24, 26

(internal quotation marks omitted). Nevertheless, echoing the

Seventh Circuit’s decision in Demaree, the Government

maintains that a sentencing court’s ultimate freedom to

impose a non-Guidelines sentence is "‘unfettered.’" Id. at 24

(quoting Demaree, 459 F.3d at 795). Framing the issue as

whether the Guidelines require or forbid a specific sentence,

the Government contends that the Guidelines’ fully advisory

nature means that they "simply do not have the preeminent

and dominant role that [Lewis] claims for them." Id. at 21

(internal quotation marks omitted). In other words, the Government believes that the Guidelines serve merely as "advice

for a district court’s initial consideration." Id. at 13.

Put simply, we are obliged to disagree with and reject the

Government’s position. Its characterization of the Guidelines

after Booker simply does not comport with either the Supreme

Court’s precedent or our own. In Gall v. United States, the

Supreme Court emphasized that "a district court should begin

in United States v. Dean, __ F.3d __, No. 08-4439 (4th Cir. May 5, 2010),

to conclude that the Ex Post Facto Clause is not implicated in this case

because the advisory Guidelines have been stripped of any legal force. See

post at 18-19. As explained herein, that conclusion would only foreclose

a facial challenge under the Ex Post Facto Clause. In this appeal, however,

Lewis pursues an as-applied contention, maintaining that application of

the 2008 Guidelines to his circumstances would result in a significant risk

of an increased sentence. See Garner, 529 U.S. at 255. The dissent also

relies on Dean for the uncontroversial point that sentencing judges possess

substantial discretion to deviate from the Guidelines. Once again, while

that proposition may mean that the Guidelines lack any facially binding

effect as a matter of law, it does not undercut the proposition that application of an upwardly amended Guidelines provision will pose a significant

risk of an increased sentence. Indeed, as Judge Wilkinson recognized in

Dean, "the Guidelines continue to play an important role in the sentencing

process." Dean, slip op. at 8. 

12 UNITED STATES v. LEWIS
all sentencing proceedings by correctly calculating the applicable Guidelines range." 552 U.S. 38, 49 (2007). Thus, "[a]s

a matter of administration and to secure nationwide consistency, the Guidelines should be the starting point and the initial benchmark." Id. Indeed, the Court has used a sentencing

court’s "fail[ure] to calculate (or improperly calculating) the

Guidelines range" as a paradigmatic example of a "significant

procedural error." Id. at 51.

In our decisions post-Booker, we have described the importance of the Guidelines in equally strong terms. Thus, we have

emphasized that "[a] sentence based on an improperly calculated guidelines range will be found unreasonable and

vacated." United States v. Abu Ali, 528 F.3d 210, 260 (4th Cir.

2008). Furthermore, because a correct calculation of the advisory Guidelines range is the crucial "starting point" for sentencing, an error at that step "infects all that follows at the

sentencing proceeding, including the ultimate sentence chosen

by the district court." United States v. Diaz-Ibarra, 522 F.3d

343, 347 (4th Cir. 2008). And, if a sentencing court commits

a significant procedural sentencing error — as it would, for

example, if it mistakenly applied the wrong edition of the

Guidelines — our practice is to vacate and remand for resentencing before reviewing the sentence for substantive reasonableness. See United States v. Carter, 564 F.3d 325, 330 n.4

(4th Cir. 2009).

Notably, the standard of review we utilize in sentencing

appeals emphasizes the importance of the advisory Guidelines. First, although a sentencing court is not entitled to presume that a within-Guidelines sentence is reasonable, an

appellate court may accord a presumption of reasonableness

to such a sentence. See United States v. Raby, 575 F.3d 376,

381 (4th Cir. 2009). Second, although a sentencing court

retains significant flexibility to impose a variance sentence

outside of the advisory Guidelines range, the court’s stated

reasons for doing so must be "sufficiently compelling to support the degree of the variance." United States v. Morace, 594

UNITED STATES v. LEWIS 13
F.3d 340, 346 (4th Cir. 2010) (internal quotation marks omitted). As a result, a "major departure" from the advisory

Guidelines range must be "supported by a more significant

justification than a minor one." Gall, 552 U.S. at 50. 

Because our standard of review is defined — at least in part

— by reference to the advisory Guidelines range, it is unsurprising that we have required the sentencing courts to be faithful to the Guidelines in calculating that range. Nor is it

surprising that, even after the Supreme Court rendered the

Guidelines advisory in Booker, a significant portion of our

sentencing appeals — including those pursued by the Government — have concerned procedural sentencing errors under

the Guidelines. In fact, in the five years since Booker was

decided, we have issued at least eight published decisions

vacating sentences on the basis of procedural error. See, e.g.,

United States v. Llamas, __ F.3d ___, No. 09-4045, slip op.

at 11-13 (4th Cir. Mar. 17, 2010) (sentencing court provided

insufficient explanation for Guidelines enhancement); United

States v. Mendoza-Mendoza, 597 F.3d 212, 219 (4th Cir.

2010) (sentencing court improperly accorded advisory Guidelines "quasi-mandatory effect"). Such appeals, which are

wholly concerned with the calculation and implementation of

the Guidelines, confirm the important practical impact that

they have on sentences. 

The federal sentencing statistics also emphasize the practical effect of the advisory Guidelines on the decisions of sentencing courts. See Turner, 548 F.3d at 1099 ("It is hardly

surprising that most federal sentences fall within Guidelines

ranges even after Booker — indeed, the actual impact of

Booker on sentencing has been minor."). The Sentencing

Commission’s statistics show, for example, that 81.9 percent

of sentences imposed within this Circuit in fiscal year 2009

fell within either the advisory Guidelines range or a

government-sponsored departure below the Guidelines range.

See U.S. Sent’ing Comm., Final Quarterly Data Report: Fiscal

Year 2009, at 2-3. Moreover, the mean length of post-Booker

14 UNITED STATES v. LEWIS
sentences for unlawful firearm possession on the national

level has remained nearly constant, as have the deviations

between the mean sentence imposed and the average minimum range under the Guidelines. See id. at 34. 

The foregoing serves to undercut the Government’s characterization of the advisory Guidelines sentencing range as

merely providing helpful advice — akin to a reference manual

— for a sentencing court’s perusal. On the contrary, we are

more persuaded by the D.C. Circuit’s description of the

Guidelines as an important "anchor" for a sentencing judge.

See Turner, 548 F.3d at 1099. And like that court, we too are

unconvinced by the Seventh Circuit’s contrary reasoning in

Demaree. See 459 F.3d at 795. That ruling was predicated on

two propositions that are belied by precedent: (1) that the Ex

Post Facto Clause "should apply only to laws and regulations

that bind rather than advise"; and (2) that sentencing judges

post-Booker have "unfettered" discretion to sentence outside

of the Guidelines range, subject only to "light appellate

review." Id.9

First, the Seventh Circuit in Demaree took an overly narrow view of the scope of the Ex Post Facto Clause, reasoning

that the defendant’s claim failed in light of the discretion conferred on a sentencing court to impose non-Guidelines sentences. See 459 F.3d at 795. In Garner, however, the Supreme

Court "foreclosed [a] categorical distinction between a measure with the force of law," on the one hand, and discretionary

guidelines, on the other. See Fletcher v. Reilly, 433 F.3d 867,

9

In Demaree, the Seventh Circuit also concluded that it would be futile

to prohibit retroactive application of amendments to the Guidelines, reasoning that a sentencing court could simply consult the amended Guidelines provision as part of its consideration of the 18 U.S.C. § 3553(a)

sentencing factors. See 459 F.3d at 795. Because this appeal does not concern the district court’s application of the § 3553(a) factors, we need not

resolve this issue. Nevertheless, we join the D.C. Circuit in "reject[ing] the

idea that district judges will misrepresent the true basis for their actions."

Turner, 548 F.3d at 1099. 

UNITED STATES v. LEWIS 15
876 (D.C. Cir. 2006) (internal quotation marks omitted); see

also Garner, 529 U.S. at 251. With regard to an "as applied"

challenge, such as that at issue here, the question is not

whether the sentencing courts retain discretion under the

Guidelines. See Turner, 548 F.3d at 1100; see also Fletcher,

433 F.3d at 876 ("[T]he existence of discretion is not dispositive."). Instead, the proper approach is to assess how the sentencing courts exercise their "discretion in practice," and

whether that exercise of discretion creates a "significant risk"

of prolonged punishment. Fletcher, 433 F.3d at 876-77. 

Our second point of disagreement with Demaree’s analysis

is related to the first, in that the Seventh Circuit’s description

of the sentencing process — how a sentencing court exercises

its discretion in practice — does not appear to comport with

this Circuit’s precedent. The district court in this case correctly observed that our Circuit "requires greater particularity

in explaining the rationale for departing or varying from the

Guidelines." United States v. Lewis, 603 F. Supp. 2d 874, 878

(E.D. Va. 2009).10 According to Demaree, a sentencing court

in the Seventh Circuit need only "consider the guidelines,"

before exercising its "unfettered" discretion to assign a sentence outside of the Guidelines range. 459 F.3d at 795

(emphasis added). Under our precedent, however, simply

"considering" the Guidelines is insufficient. Rather, the court

must correctly calculate the advisory Guidelines range, and it

must provide an adequate explanation of how it arrived at that

10The district court also concluded that Lewis would specifically be

"disadvantaged by the more onerous Guidelines in effect at the time of his

sentencing." Lewis, 603 F. Supp. 2d at 879. As the court explained, any

variance or departure is made from the final advisory calculation of the

Guidelines. See id. The higher sentencing range that would result from

retroactive application of Guidelines amendments would therefore disadvantage a defendant even where the sentencing court exercises its discretion to sentence outside of the Guidelines range. As our distinguished

former colleague Judge Williams aptly explained, the Guidelines calculation "infects all that follows" at sentencing, "including the ultimate sentence chosen by the district court." Diaz-Ibarra, 522 F.3d at 347. 

16 UNITED STATES v. LEWIS
calculation. See United States v. Wilkinson, 590 F.3d 259, 270

(4th Cir. 2010). Finally, our appellate review of a sentence

could be described as "light" only insofar as the sentencing

court commits no procedural error, because a court’s failure

to properly calculate the advisory sentencing range is a significant procedural error that requires us to vacate the ultimate

sentence. See Abu Ali, 528 F.3d at 260. In other words, a

properly calculated Guidelines range is a precondition of

appellate review of a sentence’s substantive reasonableness.

In sum, given the importance our precedent places on the

proper calculation of the advisory Guidelines range, the retroactive application of an upwardly amended advisory sentencing range poses a significant risk of an increased sentence.

And Lewis was not required to "show definitively" that he

would have received a higher sentence had the sentencing

court utilized the amended 2008 Guidelines edition. Turner,

548 F.3d at 1100. It was sufficient that he show that application of the 2008 edition "created a substantial risk" that his

sentence would be more severe. Id. He has made that showing, and there is no reason for us to disturb the district court’s

decision to apply the Guidelines in effect when Lewis committed the offense of conviction.11

IV.

Pursuant to the foregoing, we reject the appellate contentions advanced by Lewis and the Government, and affirm

Lewis’s conviction and sentence.

AFFIRMED 

11A sentencing court remains free, of course, within the parameters of

our review for substantive reasonableness, to impose a sentence above or

below the properly calculated advisory Guidelines range. We simply recognize that, in these circumstances, the retroactive application of an

enhanced Guidelines provision contravenes the Ex Post Facto Clause by

exposing Lewis to a significant risk of an increased sentence. 

UNITED STATES v. LEWIS 17
GOODWIN, Chief District Judge, concurring in part and dissenting in part:

Although I agree with my colleagues on the motion to suppress issue, I cannot join the ex post facto aspect of the majority opinion. The majority holds that the retroactive application

of a revised Sentencing Guideline range that results in a

higher recommended sentence violates the Constitution’s ex

post facto prohibition. In so doing, the majority ignores the

reality that the Guidelines lack legal force. It also creates a

constitutional contradiction by ignoring the Sixth Amendment

implications of treating the Guidelines as anything more than

advisory. Therefore, I respectfully dissent.

I.

"[T]he Guidelines were stripped of legal force" in United

States v. Booker. United States v. Dean, __ F.3d __, No. 08-

4439, slip op. at 6 (4th Cir. May 5, 2010). Accordingly, the

Constitution’s ex post facto prohibition cannot apply to them.

A.

The Ex Post Facto Clause applicable to the federal government provides, "No . . . ex post facto Law shall be passed."

U.S. CONST. art. I, § 9, cl. 3.1 By those terms, a provision must

be or have the effect of "Law" to implicate the constitutional

provision. See Stogner v. California, 539 U.S. 607, 611

(2003) ("[T]he Clause protects liberty by preventing governments from enacting statutes with ‘manifestly unjust and

oppressive’ retroactive effects." (quoting Calder v. Bull, 3

U.S. (3 Dall.) 386, 391 (1798)) (first emphasis added)); Cal.

Dep’t of Corr. v. Morales, 514 U.S. 499, 504 (1995) ("[T]he

1The Constitution contains two provisions prohibiting ex post facto

laws. The provision applicable to the federal government is in Article I,

section 9. The provision that applies to the States is in Article I, section

10. 

18 UNITED STATES v. LEWIS
Clause is aimed at laws that ‘retroactively alter the definition

of crimes or increase the punishment for criminal acts.’"

(quoting Collins v. Youngblood, 497 U.S. 37, 41 (1990))

(emphasis added)).

The Guidelines, however, are not law and do not have the

effect of law. I agree with the government that the Guidelines

"are not a legal framework that limits sentencing courts, but,

rather simply advice for a judge’s consideration." Br. of

Appellant 13. By definition, therefore, the Guidelines cannot

implicate the Ex Post Facto Clause. See United States v.

Demaree, 459 F.3d 791, 795 (7th Cir. 2006) ("[T]he ex post

facto clause should only apply to laws and regulations that

bind rather than advise[.]").

1.

In Booker, the Supreme Court declared that, under the

Sixth Amendment, "[a]ny fact (other than a prior conviction)

which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or

a jury verdict must be admitted by the defendant or proved to

a jury beyond a reasonable doubt." United States v. Booker,

543 U.S. 220, 244 (2005). Consequently, the Court held that

the Sixth Amendment’s "jury trial requirement is not compatible with the [Sentencing Reform] Act as written." Id. at 248.

As a remedy, the Supreme Court "convert[ed] the Guidelines from binding law to an advisory document." Dean, slip

op. at 6. Excised of their legal force, the Guidelines must be

read as mere advice that recommends, rather than law that

requires, that a district court impose a particular sentence. See

Booker, 543 U.S. at 233 ("If the Guidelines as currently written could be read as merely advisory provisions that recommended, rather than required, the selection of particular

sentences in response to differing sets of facts, their use

would not implicate the Sixth Amendment." (emphasis

added)); see also United States v. Benkahla, 530 F.3d 300,

UNITED STATES v. LEWIS 19
312 (4th Cir. 2008) ("Sentencing judges may find facts relevant to determining a Guidelines range by a preponderance of

the evidence, so long as that Guidelines sentence is treated as

advisory and falls within the statutory maximum authorized

by the jury’s verdict.").

But the majority fails to follow this constitutional mandate.

See Ante at 12 ("[W]e are obliged to disagree with and reject

the Government’s position" that the Guidelines "serve merely

as ‘advice for a district court’s initial consideration.’" (quoting Br. of Appellant 13)). Relying upon the D.C. Circuit’s

characterization of the Guidelines as an "important ‘anchor’

for a sentencing judge," the majority necessarily concludes

that the Guidelines are more of a requirement for district

courts to follow than advice to be considered. Id. at 15 (quoting United States v. Turner, 548 F.3d 1094, 1099 (D.C. Cir.

2008)). The majority thus gives more weight to the Guidelines

than the Sixth Amendment permits. Additionally, by recognizing that the Guidelines can implicate the Ex Post Facto

Clause, the majority creates a constitutional contradiction: the

Guidelines carry legal force under one part of the Constitution

(the Ex Post Facto Clause), but not under another (the Sixth

Amendment).

2.

Of course, sentencing guidelines with a binding, legal

effect would compel the majority’s conclusion. In Miller v.

Florida, the Supreme Court addressed the constitutionality of

the revised Florida sentencing guidelines law. 482 U.S. 423

(1987). At the time the defendant, Miller, committed the

applicable offense, the Florida sentencing guidelines provided

that he be sentenced to a term of 3 1/2 to 4 1/2 years in prison.

The State of Florida revised its guidelines before his sentencing, however, which changed Miller’s sentencing range to

between 5 1/2 and 7 years in prison. The Supreme Court held

that this retroactive change was an ex post facto violation.

20 UNITED STATES v. LEWIS
The Court explained that Florida’s guidelines raised ex post

facto concerns because they had "the force and effect of law."

Miller, 482 U.S. at 435. They did not "simply provide flexible

‘guideposts’ for use in the exercise of discretion," but instead

"create[d] a high hurdle that [was required to] be cleared

before discretion c[ould] be exercised." Id. For example, a

sentencing judge could impose a departure sentence only after

first finding "‘clear and convincing reasons’ that [were] ‘credible,’ ‘proven beyond a reasonable doubt,’ and ‘not . . . a factor which has already been weighed in arriving at a

presumptive sentence.’" Id. (quoting State v. Mischler, 488

So. 2d 523, 525 (Fla. 1986); Williams v. State, 492 So. 2d

1308, 1309 (Fla. 1986)). The mandatory character of the Florida guidelines virtually ensured that a defendant would

receive a guidelines sentence. Therefore, the Court recognized, retroactively applying the Florida guidelines "directly

and adversely affect[ed] the sentence" that a defendant would

receive. Id.

Unlike the state guidelines in Miller, however, the postBooker federal Guidelines do not carry the force and effect of

law. They do not pose a "high hurdle" to the exercise of sentencing court discretion. They are, rather, "flexible guideposts" for the exercise of the sentencing court’s discretion

within the bounds of reason. Once a court has "considered"

the Guidelines, it possesses complete discretion over the sentence imposed. See Demaree, 459 F.3d at 795 (concluding

that a sentencing judge’s "freedom to impose a reasonable

sentence outside the [guideline] range is unfettered"). Finally,

because they are advisory, retroactively applying post-Booker

Guidelines cannot directly and adversely affect the sentence

that a defendant will receive.

B.

The Supreme Court has explained, "Critical to relief under

the Ex Post Facto Clause is not an individual’s right to less

punishment, but the lack of fair notice and governmental

UNITED STATES v. LEWIS 21
restraint when the legislature increases punishment beyond

what was prescribed when the crime was consummated."

Weaver v. Graham, 450 U.S. 24, 30 (1981). At the time the

Constitution was written, a chief objection to ex post facto

laws was that they provided no notice to the public. Blackstone remarked that lawmaking must be done "in the most

public and perspicuous manner; not like Caligula, who

(according to Dio Cassius), [had] wr[itten] his laws in a very

small character, and hung them up upon high pillars, the more

effectually to ensnare the people." William Blackstone, 1

Commentaries *46. "All laws," Blackstone wrote, "should be

therefore made to commence in futuro, and be notified before

their commencement . . . ." Id.

But the Supreme Court has concluded that the post-Booker

Guidelines cannot present notice problems. In Irizarry v.

United States, the Court addressed whether, after Booker,

Federal Rule of Criminal Procedure 32(h) applies to every

sentence that varied from the Guideline range.2 553 U.S. 708,

128 S. Ct. 2198 (2008). The Court concluded that it does not,

explaining,

Now faced with advisory Guidelines, neither the

Government nor the defendant may place the same

degree of reliance on the type of ‘expectancy’ that

gave rise to a special need for notice . . . . Indeed,

a sentence outside the Guidelines carries no presumption of unreasonableness.

Id. at 2202.

2Federal Rule of Criminal Procedure 32(h) provides, "Before the court

may depart from the applicable sentencing range on a ground not identified for departure either in the presentence report or in a party’s prehearing

submission, the court must give the parties reasonable notice that it is contemplating such a departure. The notice must specify any ground on which

the court is contemplating a departure." The rule was enacted in response

to Burns v. United States, 501 U.S. 129 (1991). 

22 UNITED STATES v. LEWIS
Irizarry’s holding is relevant here. Neither Lewis nor any

defendant can make constitutional complaint when his advisory Guidelines range is changed, because he has no rightful

expectation to a within-Guidelines sentence. His only expectation is that he will be sentenced within the provided statutory range. Therefore, the Guidelines do not present the notice

problem that ex post facto laws necessarily present.3

II.

Furthermore, I disagree with the arguments relied upon by

the majority in concluding that the advisory Guidelines implicate the Ex Post Facto Clause. The majority builds its case on

language that merely describes the remnants of the Guidelines

regime. They then conclude that sentencing courts remain

somehow bound to the Guidelines, simply because the Guidelines must be consulted and correctly calculated. Finally, the

majority uses statistics to reach an unwarranted conclusion.

A.

First, the majority emphasizes that the Supreme Court has

labeled the Guidelines as the "starting point" and "initial

benchmark" in sentencing proceedings. Ante at 10. Contrary

to the majority’s characterization, however, I believe this language was not intended to leave the Guidelines with any

residual legal effect. Indeed, this Court has observed that

"consideration of the Guidelines . . . is only ‘the starting point

and initial benchmark’" at sentencing. United States v. Raby,

575 F.3d 376, 381 (4th Cir. 2009) (emphasis added); see also

Booker, 543 U.S. at 245-46 (explaining that after a proper

3Moreover, the courts of appeals have unanimously held that the retroactive application of the Booker remedy does not violate the Ex Post Facto

Clause, because the defendants were on notice of the maximum statutory

penalty when they committed their respective crimes. See, e.g., United

States v. Davenport, 445 F.3d 366, 369-70 (4th Cir. 2006) (collecting

cases), abrogated on other grounds by Irizarry v. United States, 553 U.S.

708 (2008). 

UNITED STATES v. LEWIS 23
Guideline calculation, sentencing courts are "permit[ted]" to

"tailor the sentence in light of other statutory concerns"); Gall

v. United States, 552 U.S. 38, 50 n.6 (noting that courts must

"consider" the Guidelines at sentencing). Moreover, sentencing courts may even completely disregard certain advice

offered by the Guidelines based solely on policy grounds.

Kimbrough v. United States, 552 U.S. 85, 101 (2007); United

States v. Morace, 594 F.3d 340, 349 (4th Cir. 2010).

B.

Second, the majority inappropriately gives weight to the

fact that a sentencing court’s failure to correctly calculate the

Guideline range is reversible error. See Ante at 12-14. Of

course, the applicable Guidelines range must be correctly calculated. But ensuring that sentencing courts correctly calculate the advisory Guidelines range simply ensures that the

"advice" rendered by the Guidelines is correct. Courts must

still take into account many other factors to arrive at a proper

sentence for an individual defendant.

For example, Judge Wilkinson recently explained the

importance of a sentencing court’s consideration of matters

other than the Guideline range:

A district court must begin its sentencing determination by calculating the Guidelines range, and this

typically requires the judge to make any number of

factual determinations and judgment calls. Rita [v.

United States], 551 U.S. [338,] 351-54 [(2007)]. But

that is only the beginning. A sentencing court is not

bound by the Guidelines. Id. at 355. Rather, its sentencing decision must reflect an "individualized

assessment based on the facts presented," an assessment that is entitled to "due deference" from any

reviewing court. Gall, 552 U.S. at 51. As Gall

explained, sentencing courts are "in a superior position to find facts and judge their import" for pur24 UNITED STATES v. LEWIS
poses of determining the most appropriate sentence

for a given defendant since "[t]he judge sees and

hears the evidence, makes credibility determinations,

has full knowledge of the facts and gains insights not

conveyed by the record." Id. (citation omitted).

Dean, slip op. at 10-11. Requiring sentencing courts to properly calculate the advisory range does not give the Guidelines

the force and effect of law necessary for an ex post facto violation.

C.

Third, the majority concludes that the Guidelines implicate

the Ex Post Facto Clause, in part, because appellate courts

may presume a within-Guidelines sentence to be reasonable.

Ante at 13-14 (citing Raby, 575 F.3d at 381). I respectfully

submit that the majority misses the point. This presumption is

not due to the legal force of the Guidelines. Appellate courts

are entitled to presume that a within-Guidelines sentence is

reasonable only because a within-Guidelines sentence has

already received double consideration:

[B]y the time an appeals court is considering a

within-Guidelines sentence on review, both the sentencing judge and the Sentencing Commission will

have reached the same conclusion as to the proper

sentence in the particular case. That double determination significantly increases the likelihood that the

sentence is a reasonable one.

Rita, 551 U.S. at 347. Rita further explains that the appellate

presumption, "rather than having independent legal effect,

simply recognizes the real-world circumstance that when the

judge’s discretionary decision accords with the Commission’s

view of the appropriate application of § 3553(a) in the mine

run of cases, it is probable that the sentence is reasonable." Id.

at 350. Furthermore, although an appellate court may presume

UNITED STATES v. LEWIS 25
a sentence is reasonable if it is within the Guideline range, a

sentencing court is forbidden from doing so. See United States

v. Nelson, 129 S. Ct. 890, 892 (2009); Raby, 575 F.3d at 381.

The appellate court presumption, therefore, does not logically

lead to the conclusion that sentencing courts are or should feel

compelled to stay within the advisory Guidelines range.4

D.

Finally, the majority relies on Sentencing Commission statistics to show that the "practical effect" of the Guidelines is

that most sentences fall within the appropriate Guideline

ranges, even after Booker. Ante at 14. The majority recites the

statistic that 81.9 percent of sentences imposed in the Fourth

Circuit in fiscal year 2009 fell within the advisory Guideline

range or a government-sponsored departure below that range.

Id. I find these statistics unpersuasive and irrelevant.5

The majority does not sufficiently explain what these statistics mean or, more importantly, why the courts sentenced

within the Guideline ranges. These statistics are not proof that

courts sentenced within the Guidelines because they felt compelled to do so, feared reversal on appeal, or shied away from

providing more in-depth explanation of a variant sentence.

4The majority also mentions that "the standard of review we utilize in

sentencing appeals emphasizes the importance of the advisory Guidelines." Ante at 13. This argument is also overstated, as all sentences,

"whether inside, just outside, or significantly outside the Guidelines

range," are reviewed under "a deferential abuse-of-discretion standard" on

appeal. Gall, 552 U.S. at 41. 

5Citing statistics showing that district courts tend to sentence within the

Guidelines in order to show that district courts impose particular sentences

because of the Guidelines is a false-cause logical fallacy ("ex post ergo

propter hoc"). The Sentencing Commission derived Guidelines ranges

from, among other things, empirical study of thousands of actual sentences

imposed by district courts. U.S. Sentencing Guidelines Manual ch. 1, pt.

A (2009). Therefore, it is illogical to assume that district courts feel bound

by the Guidelines simply because district courts happen to sentence within

the Guidelines. 

26 UNITED STATES v. LEWIS
Indeed, such an adherence to the Guidelines would itself be

reversible error. See, e.g., Raby, 575 F.3d at 382 (reversing

district court sentence because the court "seemed to feel constrained to impose a sentence within the Guidelines range").

The only permissible conclusion to be drawn from these

statistics is that the district courts frequently agree with the

Sentencing Commission’s advice on the proper sentence for

the defendants before them. As Rita explains,

The Guidelines as written reflect the fact that the

Sentencing Commission examined tens of thousands

of sentences and worked with the help of many others in the law enforcement community over a long

period of time in an effort to fulfill its statutory mandate. They also reflect that different judges (and others) can differ as to how best to reconcile the

disparate ends of punishment.

551 U.S. at 349. To read anything else into the statistics

would be pure speculation, and speculation is not a sufficient

basis for an important constitutional conclusion.

III.

After Booker, the Guidelines are advisory and lack legal

force. They cannot, therefore, be an ex post facto "Law." I

would affirm Lewis’s conviction, vacate his sentence, and

remand for resentencing using the 2008 Guidelines Manual.

UNITED STATES v. LEWIS 27