One-Book, Two Sentences: Ex Post Facto Considerations of the One-Book Rule After United States v. Kumar

By Andrew C. Adams*

Volume 39.2

* J.D. 2008, University of Michigan Law School; B.A. 2004, University of Texas at Austin.  Associate at Debevoise & Plimpton LLP and a member of the firm’s litigation department.  The views expressed herein are those of the author and do not express those of Debevoise & Plimpton LLP.  Sincere thanks to Morgan Adams, Derek Ettinger, Sean Hecker, Benedict Schweigert, Leigh Wasserstrom, and the editors at the American Journal of Criminal Law for their thorough and thoughtful comments on earlier drafts of this article.

Abstract

This article addresses the ongoing discord among the federal courts of appeals with respect to the implications of the U.S. Sentencing Guidelines’ “one-book rule” and its constitutionality under the Ex Post Facto Clause.  A recent decision by the Second Circuit, United States v. Kumar, produced the most extreme position in a three-way split among the circuits by holding that the application of a single Guidelines manual to multiple offenses—even offenses predating that manual’s publication—is always permissible under the Ex Post Facto Clause.  The issue brings together two separate and difficult areas of jurisprudence applying the Ex Post Facto Clause: the permissibility of allowing one crime to “trigger” heightened punishments for previous crimes and the ongoing circuit split over the application of the Ex Post Facto Clause to the Sentencing Guidelines. This Article explores the history of the application of the Ex Post Facto Clause in order to establish that, contrary to the assertions of courts and commentators, the single concern of the Ex Post Facto Clause has been putting people on notice of the consequences of their actions.  The Article then argues that Kumar, though an outlier amongst the circuits, was indeed correct in its constitutional analysis of the one-book rule.  Nevertheless, the same constitutional concepts at work in Kumar ultimately imply that the one-book rule runs counter to the goals of the Sentencing Guidelines themselves—uniformity of sentencing—even if its application is ultimately constitutional.  The Article concludes by advancing two potential resolutions to the problems left unresolved by Kumar, the courts of appeals, and the Sentencing Guidelines themselves.