          United States Court of Appeals
                     For the First Circuit


No. 18-1951

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                         STEPHEN MANTHA,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Timothy S. Hillman, U.S. District Judge]


                             Before

                 Thompson, Boudin, and Kayatta,
                         Circuit Judges.


     Elizabeth A. Billowitz for appellant.
     Alexia R. De Vincentis, Assistant United States Attorney,
with whom Andrew E. Lelling, United States Attorney, was on brief,
for appellee.


                        December 10, 2019
             KAYATTA,   Circuit   Judge.    This   appeal   concerns   the

interaction between the Sentencing Guidelines' grouping rules, the

one-book and multiple-offense rules, and the U.S. Constitution's

Ex Post Facto Clause.       In calculating the offense level for an

offense committed in 2001, the district court used the 2016

Guidelines Sentencing Manual applicable to two ungrouped, later-

committed offenses to which the defendant also pleaded guilty under

the same indictment.      The 2016 version of the manual, as compared

to the version in effect in 2001, resulted in a higher Total

Offense Level (TOL).        In a case of first impression in this

circuit, we find that application of the subsequent manual to the

prior, ungrouped offense violated the Ex Post Facto Clause.            We

further find that the district court plainly erred in providing no

justification for the resulting upward variance.

                                     I.

             In approximately 2001, Stephen Mantha molested a child

who was then between six and eight years old. Mantha also recorded

the molestation on a VHS tape.       Fifteen years later, between late

2015 and early 2016, Mantha's employer, the U.S. Postal Service,

caught him searching for and viewing child pornography on his

workplace computer.     A subsequent search of his home turned up the

recording of the 2001 molestation and electronic storage devices

containing    additional    child   pornography.     Mantha   eventually

entered a straight guilty plea to three offenses:             (1) sexual


                                    - 2 -
exploitation      of   a    child   in    violation      of   18 U.S.C.    § 2251(a)

resulting from the 2001 incident; (2) access with intent to view

child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B),

(b)(2)   resulting         from   the    2015–2016       internet      searches;   and

(3) possession of child pornography also in violation of 18 U.S.C.

§ 2252A(a)(5)(B), (b)(2) resulting from the 2016 possession of

electronic storage devices.

           The Presentence Investigation Report (PSR) prepared by

the   Probation    Officer        grouped   the    second     (2015–2016      internet

searching) and the third (2016 possession) offenses, but not the

first    (2001     exploitation)          because     the       2001    offense    was

insufficiently related to the more recent two offenses.                            See

U.S.S.G.   § 3D1.2         (identifying     when    to    group     closely   related

offenses); see also id. § 2G2.1 (providing the offense level for

sexual exploitation of a minor by production of sexually explicit

visual material); id. § 3D1.2(d) (excluding offenses covered by

§ 2G2.1 from grouping on the basis of ongoing behavior or aggregate

harm).      All        parties      agree     that       this     grouping --      and

ungrouping -- was correct.           The PSR nevertheless employed the 2016

version of the Guidelines manual to calculate the applicable

offense levels for both the two grouped offenses and for the

ungrouped 2001 offense.             Under the 2016 manual, by virtue of a

2004 amendment, see id. app. C, amend. 664 (effective Nov. 1,

2004), that 2001 offense generated an adjusted offense level (AOL)


                                         - 3 -
of 40.1   That offense level, nine levels higher than the AOL for

the two more recent grouped offenses,2 drove the calculation of

the TOL to 37,3 and resulted in a Guidelines Sentencing Range (GSR)

of 210 to 240 months.       Under the pre-amendment version of the

manual in effect at the time of the 2001 offense, the AOL for that

offense would have been 33, which would have resulted in a lower

GSR of 121 to 151 months.

          Both Mantha and the government objected to the use of

the 2016 manual as applied to the 2001 exploitation offense,

agreeing that, in the words of the government, "it would be a

violation of the [Ex Post Facto] clause to apply the present

version of the guidelines to conduct that occurred in 2001."   The

district court apparently viewed the matter otherwise, stating

only that "I've spent a good part of the morning talking with

counsel for the probation office, [and] I am going to keep the

offense level and category the same."    The court sentenced Mantha

to 196 months, a downward variance from the PSR's GSR but an upward


     1  As relevant here, the amendment raised the base offense
level (BOL) under § 2G2.1(a) from 27 to 32 and created a new two-
level enhancement, § 2G2.1(b)(2)(A), for offenses involving sexual
contact.    Two other enhancements, for four and two levels,
respectively, applied under both the pre-2004 and post-2004
manuals. See U.S.S.G. § 2G2.1(b)(1)(A), (5) (2016).
     2  By operation of § 3D1.4 (instructing how to combine
ungrouped offenses), the more recent offenses did not affect
Mantha's TOL in any way other than by bringing the newer version
of the manual into play.
     3  Mantha received a three-level reduction for acceptance of
responsibility under § 3E1.1(a), (b).


                                - 4 -
variance from the calculation for which the parties advocated.

When the government asked whether the sentence would have been the

same under the lower GSR, the court said, "I thought about that,

and I believe that would have been the sentence that I was going

to impose under either scenario."           The court gave no explanation

for why it chose the 196-month sentence, or for why it would have

done so even if it knew it to be upwardly variant.

           Mantha timely appealed.          We review de novo a preserved

claim that application of a particular version of the Guidelines

violated the Ex Post Facto Clause.          United States v. Goergen, 683

F.3d 1, 3 (1st Cir. 2012).

                                     II.

                                     A.

           We look first to see if the Guidelines themselves support

the   approach   taken   by   the   district     court,   apart   from   any

limitations imposed by the Ex Post Facto Clause.           The Guidelines

adopt what we call the "one-book rule":         "The Guidelines Manual in

effect on a particular date shall be applied in its entirety."

U.S.S.G. § 1B1.11(b)(2).4      The Guidelines also set forth what we




      4 The one-book rule also states that, "if a court applies an
earlier edition of the Guidelines Manual, the court shall consider
subsequent amendments, to the extent that such amendments are
clarifying rather than substantive changes." Id.; see also United
States v. Rodriguez, 630 F.3d 39, 42 (1st Cir. 2010). There is no
indication here that the district court was using the 2016 manual
only for this purpose.


                                    - 5 -
call the "multiple-offense rule":       "If the defendant is convicted

of two offenses, the first committed before, and the second after,

a revised edition of the Guidelines Manual became effective, the

revised edition of the Guidelines Manual is to be applied to both

offenses."   Id. § 1B1.11(b)(3).       The commentary to the multiple-

offense   rule    states     that    "the   approach   set    forth   in

[§ 1B1.11(b)(3)] should be followed regardless of whether the

offenses of conviction are the type in which the conduct is grouped

under § 3D1.2(d)."   Id. § 1B1.11 cmt. background.       Viewed in the

aggregate, these rules call for the approach taken by the district

court, subject to one caveat:        The Guidelines also warn that (of

course) the manual in effect at the time of sentencing should not

be used if doing so "would violate the ex post facto clause."         Id.

§ 1B1.11(b)(1).

          The Constitution states that "[n]o . . . ex post facto

Law shall be passed."      U.S. Const. art I, § 9, cl. 3.    The Supreme

Court has held that application of a version of the Sentencing

Guidelines adopted after an offense is committed violates the Ex

Post Facto Clause where the newer Guidelines result in a higher

GSR than the version in effect at the time the offense was

committed, even under the post-Booker advisory Guidelines regime.

Peugh v. United States, 569 U.S. 530, 549–50 (2013); see United

States v. Booker, 543 U.S. 220, 245 (2005).




                                    - 6 -
           In a case decided shortly after Peugh, our circuit

nevertheless held that application of the one-book and multiple-

offense rules to a series of grouped offenses does not violate the

Ex Post Facto Clause even if the earlier grouped offense occurred

before an amendment to the manual increasing the offense level for

that offense.   United States v. Pagán-Ferrer, 736 F.3d 573, 598

(1st Cir. 2013).    In that case, the defendant was convicted of

civil-rights violations and obstruction of justice for lying to

investigators in 2008 (post-amendment) about a 2003 assault (pre-

amendment).   Id. 595–96.   We reasoned as follows:

           The Sentencing Guidelines' one book and
           grouping rules placed [the defendant] on
           notice that if he committed a closely related
           offense in the future, his sentence for both
           offenses would be calculated pursuant to the
           Guidelines in effect at the time of that
           later,    related    offense    conduct. . . .
           Accordingly, the change in [the defendant's]
           offense level is properly viewed not as a
           consequence of an ex post facto violation, but
           as the direct result of his decision to engage
           in closely related offense conduct [after the
           amendment].

Id. at 599.     Every circuit except the Ninth agrees with this

holding.   See id. at 598 (collecting cases); United States v.

Siddons, 660 F.3d 699, 706–07 (3d Cir. 2011); see also United

States v. Wijegoonaratna, 922 F.3d 983, 992–93 (9th Cir. 2019).

           Mantha's case differs from Pagán-Ferrer in a crucial

way:   his offenses were not grouped.    The Guidelines commentary

states that this distinction is irrelevant, reasoning that "[t]he


                                - 7 -
ex post facto clause does not distinguish between groupable and

nongroupable offenses."   U.S.S.G. § 1B1.11 cmt. background.   But

in Pagán-Ferrer we adopted the fiction that prior notice sufficient

to satisfy the Ex Post Facto Clause could be presumed in the case

of groupable offenses because such offenses, by definition, are

"closely related."   See Pagán-Ferrer, 736 F.3d at 599; U.S.S.G.

§ 3D1.2.   So to concede that the offenses are not groupable is to

concede that they are not "closely related," thereby attenuating

the connection that served in Pagán-Ferrer to justify what would

have otherwise seemed to be a clear ex post facto violation.

           Arguably, the offenses here, while not closely related

(they were, after all, fifteen years apart and did not involve the

same victim), could be seen as related in some sense; one involves

abuse of a child and the other possession of visual depictions of

another person's abuse of a child. But as we move down the spectrum

from "closely related" to "related," the fiction of notice in the

case of groupable offenses, however plausible, approaches utter

fantasy, and would seem to have no stopping point.      After all,

almost all crimes committed by the same person are related in some

significant sense.

           The Guidelines' commentary justifies the application of

a later and stiffer Guidelines manual to an earlier ungrouped

offense by observing that misconduct predating a manual change may

be considered in sentencing for a post-amendment offense if the


                               - 8 -
earlier      misconduct     qualifies      as    "relevant    conduct"      in     its

relationship to the more recent offense.                 See U.S.S.G. § 1B1.11

cmt. background        (citing     the     consideration      of    pre-amendment

uncharged embezzlement in sentencing for related post-amendment

embezzlement).         But conduct is treated as "relevant conduct"

precisely because it is closely related to the primary offense.

See   id.    § 1B1.3    (defining        relevant    conduct);     see    also     id.

§ 3D1.2(c).        So the analogy drawn by the commentary fits poorly

the case at hand -- the treatment of prior, largely unrelated

conduct.     Moreover, the commentary, drafted before Peugh, seems to

overlook     the    difference     between      considering   prior      conduct   in

sentencing for a later offense and (as in this case) actually

sentencing for the prior conduct as an offense.

             In any event, even if we were to accept the notion that

a stiffer, amended manual could be applied to an earlier offense

based   on    the    fact   that    the     underlying    conduct        could   have

alternatively qualified as relevant conduct to a later offense,

that notion would find no application in this case.                       Here, the

government does not argue that Mantha's 2001 conduct could have

been considered as relevant conduct in sentencing for the 2015–

2016 possession and access offenses.                Nor do we see why it would

have been.         So the Guidelines commentary does not solve the

constitutional problem at issue here.




                                         - 9 -
          In finding the tenuous relatedness between Mantha's

earlier and later crimes to be material, we also have in mind the

fact that the Ex Post Facto Clause advances purposes beyond that

of providing notice. It serves the cause of "fundamental fairness"

by "having the government abide by the rules of law it establishes

to govern the circumstances under which it can deprive a person of

his or her liberty or life."     Peugh, 569 U.S. at 544 (quoting

Carmell v. Texas, 529 U.S. 513, 533 (2000)).     Simply telling a

person that those rules may change should not suffice to circumvent

the ex post facto bar.    Otherwise, that bar could be effectively

eliminated altogether by the enactment of a broad, catch-all

caveat.

          Three of the four circuits that have addressed the

question now before us have held that application of the one-book

and multiple-offense rules to ungrouped offenses constitutes an ex

post facto violation.    See United States v. McMillian, 777 F.3d

444, 449 (7th Cir. 2015); United States v. Saferstein, 673 F.3d

237, 244 (3d Cir. 2012); United States v. Lacefield, 146 F. App'x

15, 22 (6th Cir. 2005).    The only circuit court opinion to the

contrary predates Peugh and relied almost exclusively on the

Guidelines commentary in reaching that result.   See United States

v. Butler, 429 F.3d 140, 153–54 (5th Cir. 2005).      Our focus on

groupability in Pagán-Ferrer invites the approach adopted by the

majority of these other circuits, and we now join them expressly.


                              - 10 -
            Our holding today is a narrow one.           We leave undisturbed

the rule laid out in Pagán-Ferrer.           Furthermore, we do not say

that application of the multiple-offense rule to ungrouped conduct

will pose a problem in all circumstances.            Different permutations

may necessitate a different analysis.              We hold only that, under

the present circumstances, where the TOL is raised by application

of a Guidelines amendment to a pre-amendment offense based solely

on the existence of post-amendment offenses that are not closely

related    to   the   earlier   offense,     use    of   the   post-amendment

Guidelines is unconstitutional.

                                      B.

            We now turn to the government's argument for why Mantha's

sentence   should     be   upheld   notwithstanding      the   ex   post   facto

violation. The government relies on the district court's statement

that "I believe [196 months] would have been the sentence that I

was going to impose under either scenario."5                   The government




     5  In its written statement of reasons, the court stated that
"196 months is sufficient, but not greater than necessary, to
provide adequate punishment," which merely tracks the language of
18 U.S.C. § 3553(a).    The court then reiterated that it "would
impose this sentence whether an earlier version of the Guideline
Manual was applicable, as 196 months is the appropriate sentence
based upon the crimes committed."
     Although required by statute, see id. § 3553(c)(2); 28 U.S.C.
§ 994(w)(1), the written statement-of-reasons form "serves a
largely   administrative    purpose"   by   "facilitat[ing]   data
collection," United States v. Vázquez-Martínez, 812 F.3d 18, 25
(1st Cir. 2016).    We therefore place no weight on the district
court's written statement.


                                    - 11 -
argues, citing Peugh, 569 U.S. at 550 n.8, that the ex post facto

error was therefore harmless beyond a reasonable doubt. Cf. United

States v. Acevedo-Hernández, 898 F.3d 150, 172 (1st Cir. 2018);

United States v. Tavares, 705 F.3d 4, 25 (1st Cir. 2013).

          In making this harmless-error argument, the government

presumes that the district court's sentence stood independently on

each of two legs: a nonvariant (or downwardly variant) application

of the new Guidelines manual, and an upward variance from the GSR

calculated under the older manual.     Thus, reasons the government,

it makes no difference that the former leg was infirm.

          But this reasoning only works if the second leg itself

suffers from no disqualifying infirmity.       And it clearly does

suffer from such an infirmity because the record contains no

statement of reasons for the upward variance.    When sentencing, a

court must "state in open court the reasons for its imposition of

the particular sentence," and for sentences outside the GSR, the

stated reasons must be "specific."      18 U.S.C. § 3553(c)(2); see

also Gall v. United States, 552 U.S. 38, 46 (2007). "[T]he greater

a deviation from the GSR, the more compelling the sentencing

court's justification must be."        United States v. Del Valle-

Rodríguez, 761 F.3d 171, 177 (1st Cir. 2014).    Here, the district

court gave no explanation whatsoever for why it would impose a

196-month sentence even if the upper end of the GSR were forty-

five months less than that.    The government contends that the


                              - 12 -
reasons for the sentence can be "inferred from the record," United

States v. Rivera-Gonzalez, 809 F.3d 706, 712 (1st Cir. 2016),

because the government provided defendant-specific reasons for a

harsher sentence at the sentencing hearing.           The record lacks any

indication that the district court was adopting those reasons, and

in the context of a substantially upwardly variant sentence we

decline to impute the government's justification to the court and

thereby relieve the court of its statutory obligation.

              The government questions whether Mantha preserved in the

district court his objection to the adequacy of the court's

explanation for the upward variance.           But even assuming plain-

error review applies, Mantha would prevail on this point.             See id.

at 711 (setting out the plain-error standard).             Section 3553(c) is

unambiguous and its requirement for justifying a variant sentence

is well known.     Indeed, we have previously found similar omissions

in upward-variance cases to constitute plain error.                See United

States   v.    Montero-Montero,   817   F.3d   35,    37    (1st   Cir.   2016)

(vacating a 60-month sentence where the GSR was 6–12 months and

the court gave "no coherent explanation" for the variance); Rivera-

Gonzalez, 809 F.3d at 712 (vacating a 360-month sentence where the

GSR was 60 months and the court gave "no explanation" for the

variance).      We have upheld, under plain-error review, "short and

simple" explanations for small upward variances, United States v.

González-Rodríguez,      859   F.3d   134,   136,    139    (1st   Cir.   2017)


                                  - 13 -
(affirming a 33-month sentence where the GSR was 24–30 months and

the court explained that the defendant's "conduct [flouted] the

law and . . . represent[ed] a risk to the community" (alterations

in original)), but here there is no explanation at all.                  The

possibility of prejudice and unfairness in this situation cannot

be discounted.       See Montero-Montero, 817 F.3d at 38; Rivera-

Gonzalez, 809 F.3d at 712.       We cannot rule out the possibility of

a lower sentence until the district court explains its reasons for

selecting what it will now know is an upwardly variant sentence.

             None of this is to say that the sentence assigned by the

district court is substantively precluded as excessive.              For that

reason, we reject Mantha's argument that a 196-month sentence would

necessarily represent an abuse of discretion even if properly

explained.

                                      III.

             For   the   foregoing    reasons,   we   vacate   the   district

court's sentence and remand for resentencing consistent with this

opinion.




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