In United States v. Wijegoonaratna, --- F.3d ---, No. 17-50255 (9th Cir. 2019), the Court affirmed the defendant's convictions, but vacated (in part) his sentence.
The defendant was convicted of seven counts of health care fraud in violation of 18 U.S.C. § 1347. He raised numerous challenges. The Court rejected most, but found an ex post facto violation based on the district court's use of the 2016 Guidelines for offenses occurring before it was effective.
First, the Court reviewed de novo: "Because Wijegoonaratna did not raise the ex post facto challenge at sentencing, we would typically review his challenge for plain error. Depue, 912 F.3d at 1232–34. However, we have held that we are not limited to plain error review where the appeal presents a “pure question of law” and there is no prejudice to the opposing party. The question presented is purely legal: Does applying the revised Guidelines Manual to all of Wijegoonaratna’s counts violate the ex post facto clause? And we have previously held that “the government is not prejudiced by our requirement that the district court correctly calculate the Guidelines sentencing range before it imposes a sentence, even though [the defendant] did not raise the issue below.”
Second, the Court explained: "Using a Guidelines Manual revised after an offense occurred to calculate a Guidelines range for that offense violates the ex post facto clause if the revision leads to a higher punishment. For this reason, a defendant must generally be sentenced under the Guidelines Manual that was in effect when the offense occurred. Where different counts involve different conduct occurring under different Guidelines Manuals, 'different Guidelines ranges for those counts are appropriate.' But where the conduct is a 'continuing offense' spanning a period before and after a Guidelines Manual revision, the later Guidelines Manual applies without violating the ex post facto clause.
Third, the Court held "the government’s decision to charge Wijegoonaratna with multiple counts has consequences. The government could have charged Wijegoonaratna’s offense as a continuing offense, but it chose not to do so. For that reason, the ex post facto rule that applies to continuing offenses—just like the statute of limitations rule for continuing offenses—does not apply here, where the health care fraud was charged as multiple counts. Instead, the district court was required to calculate and apply the guideline ranges from the Guidelines Manual in effect at the time of each count. It did not."
Finally, the helpful footnotes:
"Contrary to the government’s contention, where a defendant fails to object, the issue is forfeited, not waived."
"We consider Wijegoonaratna’s challenge even though his sentence was below both the 2010 and 2016 Guidelines ranges because we must remand if the district court failed to calculate the proper range. "
