Retroactive Application of Sentencing Guidelines Violates Ex Post Facto Clause – Peugh v. U.S.

A trial court violated the U.S. Constitution’s Ex Post Facto Clause when it applied sentencing guidelines enacted years after the offenses occurred, which provided far higher sentences than those in place at the time of the offenses. Peugh v. United States, No. 12-62, slip op. (Jun. 10, 2013). The 5-4 majority opinion rejected the government’s argument that the sentencing guidelines are not “law” within the meaning of the Ex Post Facto Clause, but rather advice to the court. Although the guidelines are no longer mandatory, the majority held, they still have the force of law.

The defendant/appellant operated two Illinois businesses involved in farming. He faced multiple charges related to financial fraud for two alleged schemes that occurred in 1999 and 2000. The first involved false representations to a bank in order to obtain loans his companies could not repay, and the second involved bad checks. The schemes allegedly cost several banks nearly $2.5 million. Prosecutors charged the defendant with nine counts of bank fraud, and the case went to trial. A jury found him guilty of five counts, and acquitted him of four.

The Supreme Court has held that mandatory enforcement of the Federal Sentencing Guidelines violates the Sixth Amendment, so the Guidelines are no longer binding on federal courts. Peugh, slip op. at 4, citing United States v. Booker, 543 U.S. 220, 244 (2005). Courts must still consult the Guidelines, and appellate courts review sentences “for reasonableness under an abuse of discretion standard.” Id. at 5.

At the time of the defendant’s offenses, the 1998 version of the Guidelines were in effect, but they had been replaced by the 2009 version by the time of his sentencing. Under the 1998 Guidelines, the defendant’s recommended sentence range was thirty to thirty-seven months. Under the 2009 Guidelines, it was seventy to eighty-seven months. Id. at 2-3. The defendant argued that the Ex Post Facto Clause of the Constitution applied because it includes a prohibition on laws that seek to impose a harsher punishment than was allowed by law at the time an offense occurred. U.S. Const. Art. I, Sec. 9, Clause 3; Calder v. Bull, 3 U.S. 386, 390 (1798). The district court rejected this argument and sentenced him to seventy months in prison. The Seventh Circuit Court of Appeals affirmed the sentence, holding that the Guidelines are merely “advisory” in nature, which “vitiates an ex post facto problem.” United States v. Peugh, 675 F.3d 736, 741 (7th Cir. 2012).

The question before the Supreme Court in Peugh was whether a sentence based on non-binding sentencing guidelines that took effect after the offenses occurred was a “law” that violated the Ex Post Facto Clause. Justice Sotomayor, writing for the majority, compared the case to Miller v. Florida, 482 U.S. 423 (1987), which held that a similar set of guidelines were an Ex Post Facto violation, because they created “a significant risk that [the defendant] would receive a higher sentence.” Peugh, slip op. at 10. Although the federal Guidelines are not binding, they are likely to “steer district courts to more within-Guidelines sentences.” Id. at 11.

Criminal defendants have rights under the U.S. Constitution that police, prosecutors, and courts must respect at all times. Board-certified criminal defense attorney Michael J. Brown has spent more than twenty years fighting for the rights of west Texas defendants in criminal cases, and he has worked as an FBI agent and a federal prosecutor. To schedule a confidential consultation regarding your legal matter, contact us today online or at (432) 687-5157.

More Blog Posts:

Appellate Court Must Defer to Trial Court’s Findings of Fact, According to Texas Court of Criminal Appeals, Texas Criminal Lawyer Blog, May 29, 2013
Trader Waives Indictment and Pleads Guilty in Alleged Fraudulent Stock Scheme, Texas Criminal Lawyer Blog, April 24, 2013
State High Courts Rule that Post-Conviction Registration Law Violates Constitution’s Ex Post Facto Clause, Texas Criminal Lawyer Blog, April 8, 2013

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