Not Ex Post Facto. The Second Circuit has held that it does not violate the ex post facto clause to apply the holding of United States v. Booker to actions that occurred before Booker was decided. This is one of those cases where the defendant was sentenced to a term longer than he would have been under the Sentencing Guidelines. The decision in United States v. Fairclough can be found at the Second Circuit website. It was decided on February 17, 2006.