United States v. Waseta, No. 10-2097 (10th Cir. 2011)
Annotate this CaseDefendant Joe Waseta pled guilty to sexually abusing a minor. The offense occurred in the summer of 1989 when the victim was then twelve years old. While the charges against him only alleged one sexual act, the prosecution maintained it was part of an eleven-year pattern of sexual abuse Defendant committed against the victim. The version of the Sentencing Guidelines in place at the time of Defendant's offense mandated a sentence range of fifteen to twenty-one months imprisonment but was later made advisory. The prosecution asked for an upward variance arguing that the one count indictment did not fully detail the "horrific crime that [Defendant] committed" against the victim. The district court held that "[w]hile it is true that the ex post facto clause requires the Court to sentence [Defendant] under the laws in place at the time he committed the offense, the clause does not forbid retroactive application of the advisory guideline regime." The district court then sentenced Defendant to forty-six months' imprisonment to be followed by three years of supervised release which represented an upward variation from the advisory guideline. Defendant appealed, claiming that the district court's sentence violated the ex post facto principles of the Fifth Amendment's due process clause. Upon review of the record and the applicable legal authority, the Tenth Circuit affirmed the district court's sentence "because [Defendant's] sentence was clearly and realistically imaginable under the mandatory Guidelines system in place when he committed the crime for which he was convicted."
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