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Ex Post Facto Clause And The Application of The United States Sentencing Guidelines

Peugh v. United States

Even though the US Sentencing Guidelines are now advisory, if new, harsher Guidelines are introduced after the offense but prior to trial, application of such Guidelines may be regarded as being in violation of the Ex Post Facto principle.

Peugh v. United States 569 U.S. (2013)

Decided: June 10, 2013 Supreme Court of the United States

Issue: In May 2010 Peugh faced a sentencing hearing after having been found guilty of 5 counts of bank fraud. The offenses had taken place between 1999 and 2000. Between the time of the crimes and the sentencing hearing, the applicable Sentencing Guidelines for those crimes had been altered. If the Sentencing Guidelines in place at the time of the offense were to be applied, the applicable sentencing range would be 30 to 37 months. If the revised Guidelines were to be applied, the range was 70 to 87 months. Given that the Sentencing Guidelines are no longer binding, would the application of the revised Guidelines constitute a violation of the Ex Post Facto Clause?

Holding: Yes. Art I. s9  and s10 of the Constitution prohibits the enactment of “any ex post facto law”; in this context meaning a measure which changes an offense by inflicting a greater punishment than that which was in force at the time the crime was committed. Even though the Sentencing Guidelines are now no longer binding on lower courts (following the US Supreme Court decision in United States v. Booker (2005)) those Guidelines still must be used as a starting point and benchmark for calculating the appropriate sentencing range. On this basis, the lower court’s failure to apply the earlier Guidelines was in breach of the ex post facto clause and was therefore unconstitutional.

Facts: Peugh and his cousin Steven Hollewell ran two farming-related businesses in Illinois. Following cash-flow difficulties, the pair embarked upon a number of illicit schemes including check kiting and drawing up false contracts. The pair were charged with nine counts of bank fraud in violation of 18 USC s1344. Peugh pleaded not guilty and went to trial where he was found guilty of five counts of bank fraud.

Peugh argued at sentencing that the Ex Post Facto clause required that he be sentenced under the 1998 version of the Sentencing Guidelines in effect at the time the offenses were committed – as opposed to the 2009 version. The effect of the later Guidelines was to assign considerably more severe consequences to the acts in question. The low end of the 2009 Guidelines range was 33 months higher than the high end of the 1998 Guidelines. At the sentencing hearing, the District Court considered itself to be foreclosed by Seventh Circuit precedent and sentenced Peugh to 70 months imprisonment – i.e. at the bottom of the 2009 Guideline range. This was affirmed by the Seventh Circuit on appeal.

The Supreme Court reversed the decision in a 5-4 ruling.

Legal analysis: The Supreme Court gave detailed consideration to the relationship between the ex post facto clause and the Sentencing Guidelines in light of the fact that in United States v. Booker the US Supreme Court had held that a mandatory Guideline was unconstitutional. Did these Guidelines still have the status of a “law”? Would the retroactive application of advisory Guidelines still potentially constitute a breach of the ex post facto clause?

The decision of the majority – led by Justice Sotomayor reminds us that although the Guidelines are non-mandatory, they still effectively form the basis of sentencing. Post-Booker cases show us that there is a range of situations where a non-Guidelines sentence may be appropriate. However, as was confirmed by the US Supreme Court in Gall v. United States (2007), whereas treating the Guidelines as mandatory would constitute a procedural error, so too would failing to calculate and consider the correct Guideline range in any particular case. A district court must explain the basis for its chosen sentence on the record. Sure, the district court is not bound by the Guidelines, but if there was to be a major departure from the relevant Guideline, this requires justification. Similarly, for cases on appeal, although an appeals court is not required to presume that a within-Guideline sentence is reasonable, it is nevertheless required to give “respectful consideration” to the Guidelines.

Statute (18 U.S.C. s3553(a)) requires district courts to apply the Sentencing Guidelines in effect “on the dated the defendant is sentenced” – unless application of those particular Guidelines would violate the ex post facto clause.

In the earlier case of Miller v Florida 1987 it had already been established that applying amended sentencing guidelines that increase a defendant’s recommended sentence can violate the ex post facto clause  – even in those situations where the sentencing court has discretion to deviate from the recommended sentencing range.

Post-Booker, sentencing decisions are still very much “anchored by the Guidelines”. The defendant in any case will be aware that the Guideline range is intended to exert “controlling influence” on the sentence the court will impose.

The majority of the Court was of the view that all of this combines to fix the Guidelines with sufficient legal force for a retrospective increase in a particular range to constitute an ex post facto violation.

Stephen Preziosi is a criminal appeals lawyer in New York City’s Times Square.  His firm handles both New York Criminal Appeals and Federal Criminal Appeals throughout the nation.