Upward Variance OK; Ex Post Facto and Due Process Arguments Rejected

U.S. v. Waseta, 2011 WL 3071541 (7/26/11) (N.M.) (Published) - The 10th finds no ex-post-facto-due-process problem with an upward variance under Booker for a pre-Booker offense. The defendant's 46-month sentence for sexual abuse of a minor between 12 and 16, where the guideline range was 15 to 21 months, was not higher than the defendant might realistically have imagined he might receive at the time of the crime, even though Judge Vazquez found a departure, as opposed to a variance, was not warranted. What matters to the 10th is not what a particular sentencing court did after the crime. What matters is the notice of what sentence might be imposed at the time of the crime. At that time, the defendant could not have predicted he would get an acceptance of responsibility reduction, but he could have felt he could receive upward departures for underrepresentation of criminal history, uncharged conduct, extreme psychological injury or extreme conduct, all departures due to alleged repeated sexual abuse of the victim over an 11 year-period. It did not matter that the state of the record may not have supported the departures or apparently that the d. ct. did not expressly find repeated abuse. It was enough that the "universe of facts," even contested ones, would have been realistically imaginable to the defendant [by imagining all the acts the victim might falsely accuse him of?]. To make matters worse, the 10th indicates a defendant could waive an argument distinguishing precedent if the argument was only made in the reply brief, because the government wouldn't have had a chance to respond to the distinction. In other words, an appellant may have to respond in the opening brief to every argument s/he thinks the appellee might raise in the answer brief. And it was not enough to trigger the district court's duty to make a finding of fact regarding repeated sexual abuse of the victim when the defendant made a general unspecified objection to suggested grounds for an upward variance.