United States of America, Plaintiff-appellee, v. Carl Jennings and John Stepp, Defendants-appellants, 966 F.2d 184 (6th Cir. 1992)

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U.S. Court of Appeals for the Sixth Circuit - 966 F.2d 184 (6th Cir. 1992) April 28, 1992

Before: MARTIN and NELSON, Circuit Judges; and WELLFORD, Senior Circuit Judge.


On September 16, 1991, we issued an opinion in this case. 945 F.2d 129. On page 135, footnote 1 of the opinion, we stated that " [t]he version of the [sentencing] guidelines in effect at the time of sentencing is ordinarily applied." This court has stated, however, that when the sentencing guidelines in effect at the time of sentencing provide for a higher range than those guidelines in effect at the time the crime was committed, an ex post facto problem exists and a court must not impose a sentence in excess of that allowed by the older guidelines. United States v. Nagi, 947 F.2d 211, 213 n. 1 (6th Cir. 1991) (citing Miller v. Florida, 482 U.S. 423, 107 S. Ct. 2446, 96 L. Ed. 2d 351 (1987)). In the present case, if the 1990 guidelines provide a higher sentencing range than the 1987 guidelines, the district court should sentence the defendants under the 1987 guidelines to avoid ex post facto problems.