                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 04-1722
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the District
                                         * of Nebraska.
Rodney Harrison,                         *
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: October 18, 2004
                                 Filed: January 5, 2005
                                  ___________

Before COLLOTON, LAY, and BENTON, Circuit Judges.
                           ___________

BENTON, Circuit Judge.

       Rodney L. Harrison appeals his sentence for two offenses: possession with
intent to distribute cocaine, 21 U.S.C. § 841(a)(1), and criminal forfeiture, 21 U.S.C.
§ 853. The district court1 sentenced Harrison to 168 months' imprisonment, based
on the 2003 Sentencing Guidelines in effect at the time of sentencing on March 1,
2004. Harrison argues that he should have been sentenced under the 2002 Guidelines
in effect when he committed the crimes on May 7, 2003. Jurisdiction being proper
under 18 U.S.C. § 3742 and 28 U.S.C. § 1291, this court affirms.

      1
       The Honorable Thomas M. Shanahan, United States District Judge for the
District of Nebraska.
        For the first time on appeal, Harrison raises the argument that retroactive
application of the 2003 Guidelines violates the Ex Post Facto Clause. U.S. Const.
art. I, § 9, cl. 3. He seeks plain error review. See United States v. Comstock, 154
F.3d 845, 847 (8th Cir. 1998); Fed. R. Crim. P. 52(b). The government contends
that Harrison waived the ex post facto argument in the district court and cannot raise
it in this court.

        "Whereas forfeiture is the failure to make the timely assertion of a right, waiver
is the 'intentional relinquishment or abandonment of a known right.'" United States
v. Olano, 507 U.S. 725, 733 (1993), quoting Johnson v. Zerbst, 304 U.S. 458, 464
(1938). Waiver extinguishes a potential "error" under Rule 52(b). Id. The result is:
"The plain error standard only applies when a defendant inadvertently fails to raise
an objection in the district court." United States v. Thompson, 289 F.3d 524, 526
(8th Cir. 2002).

       The record here shows a waiver, not a forfeiture. Harrison's presentence report
states, "The 2003 edition of the Guidelines Manual, incorporating amendments
effective November, 5, 2003, has been used in assessing this case." At the sentencing
hearing, the judge asks defense counsel, "And Mr. Hall, I don't find any express
objection to the PSR. I take it that there is no objection; is that correct?" Defense
counsel answers, "That's correct, Your Honor."

       In his Brief in Support of Motion for Downward Departure, defense counsel
says, "Mr. Harrison submits that the proper sentencing range for this offense should
be 168 months (Class V)." The Brief relies on United States v. Senior, 935 F.2d 149
(8th Cir. 1991).

       On the first day of sentencing, February 24, the judge cites and discusses
United States v. Senior, 935 F.2d 149, and United States v. Greger, 339 F.3d 666 (8th
Cir. 2003). The judge outlines that these cases allow downward departures to both

                                           -2-
offense level and criminal history in order to compensate for overrepresentation of
criminal history due to career offender status.

        Later on the first day of sentencing, defense counsel requests a departure from
category VI to V in criminal history. Defense counsel emphasizes that the
government does not oppose the departure based on the totality of circumstances, and
that it is justified based on Senior and Greger.

       Concluding the first day of the sentencing hearing, the judge notes that he has
discretion to depart downward. He questions why he is bound to a one-category
criminal history departure instead of departure to the pre-career-offender range. The
judge says that this would authorize a sentence of 92 to 115 months. He asks counsel
for insight. The hearing was continued to March 1.

      On February 26, Harrison filed Defendant's Amended Motion for Downward
Departure and Request for Oral Argument. Three times, the Motion requests
departure "downward one category level from category VI to category V."

       Reconvening the sentencing hearing, the judge announces that he determined
that a downward departure was warranted, but restates the open issue of how far he
can depart. The government states that the departure is limited to one level, and that
Greger is trumped by the new sentencing guideline. Defense counsel responds:
"Your Honor, I believe that the government is correct that in fact it was probably a
response that was—came about in November of 2003." Defense counsel continues:
"And that was my reading of—." The judge then explicitly raises the ex post facto
argument in open court:

      [A]nybody ever given any consideration to ex post facto considerations?
      I mean, before we came in with 4A1.3 we could do all this maneuvering,
      according to Judge Smith Camp, and I'm going to say in Gregor. And
      I might have the case mistaken, but it was that one that says there can be

                                         -3-
      both lateral, that is vertical, and—and horizontal movement. That's what
      existed before we came up on—in October of last year with the new
      4A1.3. Oh, well.

After the government objects that ex post facto analysis does not apply to the
sentencing guidelines, the judge says, "Well, it hasn't been—it hasn't been raised. But
I toss it out for those that are intellectually hungry." After citing United States v.
Frank, 354 F.3d 910, the judge states, "Government may want to take a look at that.
I—or at least the defense may want to take a look at it sometime." The judge
immediately adds: "Because they do apply the concept of ex post facto to sentencing
guidelines, not just statutes." The Assistant U.S. Attorney concedes: "Well, then I
stand corrected on the application of the clause. But we're not dealing with guideline
ranges, I guess is my point. We're dealing with discretionary motions." Defense
counsel does not respond during this discussion, but later during allocution argues
that sentencing at the low end of the guidelines is appropriate. The judge then
sentences Harrison to 168 months, "being the low end of the sentencing guideline."

      This case is controlled by two decisions of this court. In Thompson, counsel
withdrew all objections and asked for sentencing at the low end of the guideline
range. Thompson, 289 F.3d at 526. Finding a waiver, this Circuit held, "On appeal,
Thompson cannot complain that the district court gave him exactly what his lawyer
asked." Id. See also United States v. Nguyen, 46 F.3d 781, 783 (8th Cir. 1995) ("A
defendant who explicitly and voluntarily exposes himself to a specific sentence may
not challenge that punishment on appeal."); United States v. Fritsch, 891 F.2d 667,
668 (8th Cir. 1989) (same); United States v. Pratt, 657 F.2d 218, 219-21 (8th Cir.
1981) (double jeopardy argument waived where defendant pleaded guilty with
knowledge of the argument and the sentence to which he was exposed). See
generally United States v. Richardson, 238 F.3d 837, 841 (7th Cir.), cert. denied, 532
U.S. 1057 (2001) (when a judge asks at sentencing whether there is an objection to
an enhancement, and the lawyer does not object, the argument is barred from
consideration on appeal).
                                         -4-
       In the other controlling decision by this court, the defendant's attorney, at
sentencing, told the judge that the Presentence Investigation Report recommended the
correct offense level and criminal history category, and stated "no objection" to the
sentence. United States v. Wilson, 184 F.3d 798, 801 (8th Cir. 1999). On appeal,
this court rejected plain error review of Wilson's argument that the district court
violated the Ex Post Facto Clause in applying a later version of the Guidelines. Id.
at 800. This court held that Wilson waived the ex post facto argument. Id. at 801.2

       Here, the judge repeatedly identified the issues, and defense counsel took no
action other than to request the sentence given. On this record, defense counsel did
not inadvertently fail to object. See Thompson, 289 F.3d at 526. For purposes of this
appeal, Harrison waived the ex post facto argument. This waiver extinguishes any
potential error under Rule 52(b) as to Harrison's sentence. See Olano, 507 U.S. at
733.

      The sentence is affirmed.




      2
        The dissent argues that our decision in Wilson conflicts with United States v.
Michelsen, 141 F.3d 867 (8th Cir. 1998). Michelsen, however, involved a
defendant’s waiver of the right to appeal an issue that was contested in the district
court, while Wilson, Thompson, Nguyen, Fritsch, and Pratt concern claims that were
themselves waived in the district court. Moreover, to the extent our cases on waiver
of the right to appeal are relevant here, our more recent en banc decision in United
States v. Andis, 333 F.3d 886, 892 (8th Cir. 2003) (en banc), holds that a sentence
within the statutory range of punishment (as Harrison’s surely was) is not an “illegal
sentence” for purposes of enforcing an appeal waiver.
                                         -5-
COLLOTON, Circuit Judge, concurring.

       I concur in Judge Benton’s opinion for the court, which I believe comports with
our court’s governing precedent concerning waiver. Even were Harrison’s claim
subject to review for plain error, however, I do not believe the district court’s
imposition of sentence “seriously affect[ed] the fairness, integrity or public reputation
of judicial proceedings,” as required before a court of appeals should exercise its
discretion to correct a plain error. United States v. Olano, 507 U.S. 725, 736 (1993)
(internal quotation and citation omitted). See also United States v. Young, 470 U.S.
1, 15 (1985) (holding that discretion to correct plain error should be employed “solely
in those circumstances in which a miscarriage of justice would otherwise result.”)
(internal quotation and citation omitted).

       On review of the governing law and the record in this case, I respectfully
disagree with the dissent’s assertion that Harrison “will serve roughly five to ten
additional years than he would have served under the prior sentencing scheme.” Post
at 16. Harrison had no entitlement to a downward departure of any degree, and
despite some preliminary discussion concerning the degree to which the court was
authorized to depart from the guideline range under appropriate circumstances, the
record ultimately does not establish that the district court thought the sentence
imposed was inappropriate. The district court recognized that the Ex Post Facto
Clause applied to changes in the sentencing guidelines, (S. Tr. 22-23), and the court
of course had authority to consider a downward departure greater than either party
sought. See Burns v. United States, 501 U.S. 129 (1991).3 The court explained to
Harrison that it had departed downward from the applicable sentencing guideline

      3
       Although the sentencing transcript shows that the government agreed to
Harrison’s request for a departure of one criminal history category, we do not know
from this record whether the parties specifically had negotiated a one-category
departure, such that an effort by Harrison to gain a greater departure might have
jeopardized the government’s agreement to any departure at all.
                                          -6-
                                           6
range, but that it “also had to consider the need to punish you and deter you from any
other criminal conduct.” (S. Tr. 29). The court concluded: “So it’s my belief that
this 168 months, being the low end of the sentencing guideline, is appropriate in your
case.” (Id.).

       Whatever the district court believed, I conclude that the absence of a greater
reduction in sentence did not seriously affect the fairness, integrity or public
reputation of judicial proceedings. It is questionable whether Harrison deserved a
downward departure at all, given his record of nine prior drug convictions based on
at least six separate incidents between 1989 and 1991 when he was 29 to 31 years old,
(PSR ¶¶ 34-39)4, a violation of probation adjudicated in 1992, (PSR ¶¶ 34-37), a
shoplifting conviction in 2001, (PSR ¶ 40), and his instant conviction at age 44 for
possession with intent to distribute 1.49 kilograms of cocaine. (PSR ¶ 21). Cf.
United States v. Hutman, 339 F.3d 773, 776 (8th Cir. 2003) (concluding after a
survey of precedent that “a downward departure from career offender status may be
appropriate for a relatively young defendant with a brief criminal career”). But
accepting that the parties agreed to a downward departure, I think a departure of more
than one criminal history category would have been “unreasonable” under the
circumstances of this case. See 18 U.S.C. § 3742(e)(3). Accordingly, even were the
matter before us on plain error review, I do not believe appellant has demonstrated
that the district court’s decision to limit the reduction to 20 months, thus resulting in
a term of imprisonment of 168 months for this career offender, constituted a
miscarriage of justice warranting relief under Federal Rule of Criminal Procedure
52(b).




      4
        The presentence report reflects that four convictions were for sale of cocaine
and five convictions were for possession of cocaine. Based on the sentences
associated with each conviction, it appears that all of the offenses were punishable
by a term of imprisonment exceeding one year.
                                          -7-
                                           7
LAY, Circuit Judge, dissenting.

       I respectfully dissent. The majority has invoked a legal technicality in order
to affirm an illegal and unjustifiedly severe sentence. The majority’s reliance on
waiver totally ignores the Supreme Court’s opinion in United States v. Olano, 507
U.S. 725 (1993). In addition, the district court and this court lack the authority to
impose an illegal sentence.

I. Illegality of the Sentence

       The majority holds that Harrison waived his right to object to his sentence,
which was imposed under the retroactive application of a 2003 Guideline in violation
of the Ex Post Facto Clause. The majority concludes Harrison is therefore barred
from pursuing such an argument on appeal. However, the constitutional directive
contained in the Ex Post Facto Clause cannot be waived. The Constitution orders
Congress (and the states) that “[n]o Bill of Attainder or ex post facto Law shall be
passed.” U.S. Const. Art. I, § 9, cl. 3; see also id. at § 10, cl. 1. Accordingly, the U.S.
Sentencing Commission, which crafted the Sentencing Guidelines pursuant to
Congress’ delegated authority, created U.S.S.G. § 1B1.11. This Guideline tells the
federal courts to

      use the guidelines manual in effect on the date that the defendant is
      sentenced, unless the court determines that this would violate the ex post
      facto clause of the United States Constitution, in which case it is to use
      the manual in effect on the date that the offense of conviction was
      committed. Because an amendment to a Sentencing Guideline has the
      potential to increase a defendant’s punishment for a crime committed
      prior to the amendment, the ex post facto clause is violated if a
      defendant is sentenced under the Guidelines in effect at the time of
      sentencing when those Guidelines produce a sentence harsher than one
      permitted under the Guidelines in effect at the time the crime is
      committed.

                                           -8-
                                            8
United States v. Frank, 354 F.3d 910, 926 (8th Cir. 2004) (internal citations and
quotation marks omitted); see also U.S.S.G. § 1A1.1 (identifying the statutory
authority for creation of the Guidelines); Miller v. Florida, 482 U.S. 423, 435-36
(1987) (wherein a unanimous Supreme Court held that a revised state sentencing
guideline was void as applied to the defendant, whose offense occurred before the
revised law’s effective date).


      The Ex Post Facto Clause enshrines a constitutional mandate that is binding
upon Congress and, by extension, the Sentencing Commission and all courts
attempting to implement the Guidelines. It is not a mere “procedural” right that can
be shed carelessly. See United States v. Groves, 369 F.3d 1178, 1182 (10th Cir.
2004) (reversing and remanding a defendant’s sentence under the Guidelines on ex
post facto grounds because a “sentencing court is not authorized to impose an
unconstitutional sentence – such as a sentence that violates the Ex Post Facto Clause
– and such a sentence is therefore illegal”); see also United States v. Lightsey, 886
F.2d 304, 305 (11th Cir. 1989) (same).


       While it is well-settled that an individual can waive his or her appellate rights
in exchange for the benefits of a plea agreement, see, e.g., United States v. Garrido,
995 F.2d 808, 814 (8th Cir. 1993), a court never possesses the authority to impose an
illegal sentence that violates the Ex Post Facto Clause, even where a defendant agrees
to the illegal sentence in the plea agreement. See United States v. Michelsen, 141
F.3d 867, 872 & n.3 (8th Cir. 1998) (recognizing that, notwithstanding a voluntary
and knowing waiver of appellate rights, a defendant implicitly preserves his or her




                                          -9-
                                           9
right to appeal a sentence on grounds of illegality).5 If this were not true, then parties
could agree to illegal contracts.6




      5
        United States v. Wilson, 184 F.3d 798, 800-01 (8th Cir. 1999), appears to state
the contrary. I am not confident that Wilson rests on sound reasoning. Wilson states
correctly that even a constitutionally guaranteed “procedural” right to appeal may be
waived by a criminal defendant. Id. at 800. Yet, the Wilson court refused to consider
Wilson’s substantive ex post facto argument on appeal, citing the general rule that a
defendant who explicitly and voluntarily exposes himself or herself to a sentence may
not challenge that punishment on appeal. Id. at 801. The majority makes an identical
mistake. See supra majority opinion at 4-5 (citing United States v. Thompson, 289
F.3d 524, 527 (8th Cir. 2002); Wilson, 184 F.3d at 800-01; and United States v.
Nguyen, 46 F.3d 781, 783 (8th Cir. 1995)). This general rule has no bearing on, and
cannot trump, the special review procedure articulated in Fed. R. Crim. P. 52(b).
Second, while the generic, procedural right to appeal can be waived, the substantive
right prohibiting ex post facto laws cannot. As Michelsen states, the right to appeal
a sentence on grounds of illegality survives a knowing and voluntary waiver of
appellate rights. See 141 F.3d at 872. To the extent that Wilson and Michelsen create
a conflict within our own circuit, this issue warrants further appeal or rehearing.

       At any rate, Wilson is factually distinct from the instant case. In Wilson, the
defendant’s attorney stated at the sentencing hearing that he or she had reviewed the
Presentence Investigation Report (PSIR) and “believed it [was] correct and accurate
in all matters.” 184 F.3d at 799-800. Here, Harrison’s attorney made no such
concession at the sentencing hearings. Indeed, ever since the PSIR in this case was
released, Harrison and his attorney have argued that the PSIR’s recommendation of
“career offender” status seriously overrepresented Harrison’s criminal history.
Moreover, Harrison’s plea agreement does not contain a provision stating that he
waived his appellate rights.
      6
       Because courts are required to approve plea agreements, the obligation to
ensure that plea agreements do not violate the Ex Post Facto Clause probably rests
with the court, and may be the type of constitutional issue that any court should be
allowed to raise sua sponte.
                                          -10-
                                           10
       If the sentencing court applied the wrong Guideline resulting in a harsher
sentence than the correct Guideline would have imposed,7 then Harrison’s sentence
violates the Ex Post Facto Clause and is illegal, and the sentencing court lacked the
authority to impose the sentence.


       Accordingly, I would vacate the sentence and remand for resentencing pursuant
to the Guidelines that were in effect at the time Harrison committed the offense.


II. Analysis Under Federal Rule of Criminal Procedure 52(b)


       The majority opinion holds that Harrison waived the ex post facto argument.
This is clearly wrong. The majority in so holding contradicts the principles of Olano.


       Under Fed. R. Crim. P. 52(b), a court of appeals has the power to address errors
to which a party did not object in district court. See Olano, 507 U.S. at 731. This
power is limited; an appellate court may only correct the alleged error that occurred
below if that error (a) is plain, (b) affects substantial rights, and (c) was inadvertently
forfeited. Id. at 732.


      A. Forfeiture Versus Waiver


       As the Olano court explained, “forfeiture is the failure to make the timely
assertion of a right,” whereas “waiver is the ‘intentional relinquishment or
abandonment of a known right.’” Id. at 733 (citations omitted). Olano states clearly
that waiver must be the product of intent. Id. Yet, in response to the Government’s


      7
       See infra Part II.B. at 7-9 (conducting a harshness analysis).
                                           -11-
                                            11
comment that the Ex Post Facto Clause is inapplicable to the Guidelines, the district
court itself stated on the record, “Well, it hasn’t been – it hasn’t been raised. But I
toss it out for those who are intellectually hungry.” Tr. at 21 (emphasis added). This
statement from the district court judge is definitive. The majority reasons that
because the “judge . . . explicitly raises the ex post facto argument in open court,” see
supra majority opinion at 3, then it can ignore the judge’s subsequent statement that
the Ex Post Facto issue “hasn’t been – it hasn’t been raised.” Tr. at 21. This makes
no sense. The fact that the sentencing court and counsel for the Government
pontificated about the issue at the sentencing hearing on March 1 – while defense
counsel remained silent – does not change the legal status of this issue.


      The majority’s attempt to reconstruct the facts of this case so as to appear that
defense counsel consciously waived an objection on ex post facto grounds is clearly
erroneous. Harrison did not waive his rights intentionally. Although, on the first day
of sentencing, the district judge was hinting at the potential ex post facto issue,
defense counsel was clearly unaware of the implications of the judge’s questions. At
most, this is inadvertent forfeiture, not waiver.


       The majority’s strongest evidence of waiver boils down to two statements, both
of which require a gigantic interpretive leap to conclude that either demonstrates an
intentional relinquishment of Harrison’s ex post facto right. First, during the first day
of the sentencing hearing (February 24), and before the judge ever mentioned the
words “ex post facto or the 2002 Guidelines,” the judge asked the attorneys how
much discretion he had to depart downward. Defense counsel requested a one-level
downward departure in criminal history. Without any mention of the differently
worded 2002 Guidelines, defense counsel assumed that the judge’s request was made
pursuant to the (more limiting) 2003 version of the Guidelines. This is not evidence
of an intentional waiver – it is evidence of an inadvertent forfeiture.



                                          -12-
                                           12
       Second, the majority points to February 26 when defense counsel filed an
amended motion for downward departure reiterating the request made at the first
hearing. Again, at this point, no one mentioned the 2002 Guidelines or the Ex Post
Facto Clause. Defense counsel obviously repeated the request because he thought the
judge needed clarification on the departure allowed under the 2003 version. Counsel
did not comprehend what the judge was getting at, and that is inadvertent forfeiture,
not intentional relinquishment.8


       Conspicuously lacking from the majority opinion is any express statement in
the record made by Harrison or his counsel – at a point in time after the district court
mentioned the Ex Post Facto Clause explicitly – that he relinquished or waived his
right under the Ex Post Facto Clause. It is not surprising that the record should be
devoid of such a statement; a fair reading of the record reveals that defense counsel
remained mute because he simply did not comprehend what was going on at the




      8
        If not taken out of context, the record shows that defense counsel lodged
conflicting and vague requests regarding the extent of departure and relied upon case
law that specifically endorsed the sentencing judge’s authority to depart downward
more than one offense level. See e.g., Def. Brief in Support of Motion for Downward
Departure at 6 (requesting that the court “reduce his sentence as justice and fairness
dictate” but requesting no specific offense level); Def. Am. Motion for Downward
Departure and Request for Oral Argument at 2 (submitted on February 26, and
requesting a departure of “one category level from category VI to category V”); Tr.
at 13 (basing the departure request on the United States v. Greger, 339 F.3d 666, 668,
671 (8th Cir. 2003) – which explicitly allows a sentencing judge to depart both
vertically and horizontally – yet also requesting only a single criminal history
category departure because the ex post facto issue is not yet clear); Tr. at 24 (asking
the court on March 1 to impose a sentence at the low end of the guideline range, but
omitting a specification of the applicable range).
                                         -13-
                                          13
hearing. Defense counsel’s confused silence cannot be transformed into an express
or intended statement that the Ex Post Facto Clause was inapplicable.9


       Once the sentencing resumed on March 1, the judge finally mentioned the Ex
Post Facto Clause by name. The Government began to offer an argument to the court
on that issue, but the judge explained clearly that the issue was not before the court.
As this exchange transpired between the judge and prosecutor, defense counsel
remained silent. After the ex post facto issue became explicit, defense counsel never
again specified the precise extent of the departure being sought.


       It is a stretch to rule that waiver of the Ex Post Facto Clauses’ guarantee can
occur where that issue was definitively “not raised” before the court, as the record
states. But it defies reason to engage in a double-charade and further hold, as the
majority does, that such waiver can be achieved by defense counsel’s failure to grasp
an issue at which a judge is graciously hinting.


      Ex post facto arguments simply were not asserted or waived by Harrison’s
counsel, and an inadvertent failure to assert a substantial constitutional right
impacting the fairness and integrity of the penal system is precisely what Fed. R.
Crim. Proc. 52(b) enables a defendant to resurrect on appeal. Olano, 507 U.S. at 731-
32.




      9
        Contrary to the Government’s patently incorrect claim in its brief, the
transcript from the sentencing hearing contains no concession by defense counsel
that, in fact, the new 2003 guideline controlled the extent of departure in this case.
Defense counsel merely conceded that the 2003 Guideline amendment “came about
in November of 2003.” Tr. at 20.
                                         -14-
                                          14
      B. Plain Error Affecting Substantial Rights


       In the present case, it cannot be disputed that the district court committed plain
error that affected a substantial constitutional guarantee contained in the Ex Post
Facto Clause – i.e., the unequivocal command that the Government shall not dole out
punishment that imposes a harsher sentence than the one permitted by law at the time
the crime was committed. See U.S. Const. Art. I, § 9, cl.3; Frank, 354 F.3d at 926.10

       If one compares the sentence Harrison received under the 2003 version of the
Guidelines with the sentence he likely would have received under the 2002 version,
it appears that he would have received a lesser sentence under the earlier version. It
is undisputed that the policy statement contained in U.S.S.G. § 4A1.3 (2003) limits
the downward departures for career offenders to one criminal history category.
Given Harrison’s total offense level of 31 and a criminal history category of V (after
application of a single downward departure), the resulting sentencing range was 168-
210 months (14-17.5 years).

       Even the Government concedes that “[p]rior to November 5, 2003, no such
restriction existed allowing the Court to depart horizontally (criminal history
category) and vertically (offense level) from the applicable career offender guideline
range.” Government’s Brief at 8-9 (citing Greger, 339 F.3d at 668 (8th Cir. 2003)).
Although the district court did not state definitively what sentence it would have
issued to Harrison had it been able to exercise greater discretion, the record reveals
that the district court wanted to drop Harrison’s offense level to 23, but leave his


      10
         Normally, a district court’s decision to deny a downward departure is not
reviewable. An exception to this rule is when “the district judge mistakenly believed
that he or she lacked the authority to make such a departure,” which is the case here.
Frank, 354 F.3d at 926; see also Tr. at 23 (reflecting the judge’s statement that he
departed downward to the degree authorized under the current law).
                                          -15-
                                           15
criminal history category at VI, which would have produced a sentencing range of 92-
115 months (roughly 7.6-9.5 years).11

       In light of this analysis, it is clear that the application of the 2003 Guideline
imposed a harsher sentence than the prior version. Harrison will serve roughly five
to ten additional years than he would have served under the prior sentencing scheme.
Moreover, this error encroaches upon a fundamental liberty interest protected by the
Ex Post Facto Clause. “The presumption against the retroactive application of new
laws is an essential thread in the mantle of protection that the law affords the
individual citizen.” Lynce v. Mathis, 519 U.S. 433, 439 (1997). In both a temporal
and substantive sense, this error affects “substantial rights.”12

      11
         See Tr. at 8 (reflecting the judge’s belief that if the district court opted to
grant Harrison’s request for downward departure on the ground that his “career
offender” status overrepresented the severity of his criminal history, the court could
sentence within the guideline range that would have applied absent the career
offender status in its entirety – i.e., the base offense level minus any adjustments); see
also United States v. Senior, 935 F.2d 149, 151 (8th Cir. 1991) (affirming sentence
based on the guideline range that would have applied absent the career offender
status).
      12
        The Government argues that the 2003 amendment to U.S.S.G. §4A1.3 did not
technically increase the penalty for the crime and therefore did not increase the
harshness of Harrison’s sentence. Rather, the Government reasons, the amendment
merely restricted the sentencing court’s discretionary authority to depart more than
one criminal history level. This argument is disingenuous. When a judge’s discretion
to grant downward departures is restricted, the harshness of a sentence necessarily
increases. The Supreme Court has already rejected the argument that downward
departures or other types of penalty credits bear no relation to the severity of a
sentence because they are “not ‘in some technical sense part of the sentence.’” Lynce,
519 U.S. at 445-47.

      [R]etroactive alteration of parole or early release provisions, like the
      retroactive application of provisions that govern initial sentencing,
      implicates the Ex Post Facto Clause because such credits are one
                                          -16-
                                           16
       Since the district court applied the 2003 version of the Guidelines and imposed
a harsher sentence than it would have under the prior version, U.S.S.G. § 1B1.11 was
violated. This type of deviation from a Guideline binding upon courts is “plain error”
within the meaning of Rule 52(b). “If a legal rule was violated during the district
court proceedings, and if the defendant did not waive the rule, then there has been an
‘error’ within the meaning of Rule 52(b) despite the absence of a timely objection.”
Olano, 507 U.S. at 733-34.

      In short, the district court committed plain error affecting substantial rights, and
Harrison did not waive appeal of this error. This case cries out for reversal.
                          _____________________________




      determinant of petitioner’s prison term . . . and . . . [the petitioner’s]
      effective sentence is altered once this determinant is changed. . . . [T]he
      removal of such provisions can constitute an increase in punishment,
      because a prisoner’s eligibility for reduced imprisonment is a significant
      factor entering into both the defendant’s decision to plea bargain and the
      judge’s calculation of the sentence to be imposed.

Id. at 445-46 (emphasis added and internal citations omitted); see also Weaver v.
Graham, 450 U.S. 24, 33-34 (1981), overruled on other grounds, Cal. Dep’t Corr.
v. Morales, 514 U.S. 499, 506 n.3 (1995) (holding that a revised Florida statute,
which reduced the availability of monthly “gain-time” credits that could operate to
reduce a sentence, was retroactively and unconstitutionally applied to defendant in
violation of the Ex Post Facto Clause). Thus, it is well-settled that, even though a
downward departure under § 4A1.3 is a product of judicial discretion to which a
defendant is not necessarily entitled, this does not bar the ex post facto claim. In light
of Lynce and Weaver, the Government’s attempt to recycle this argument is ill-taken.
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