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Federal Criminal Sentencing Hearings: Constitution Mandates That Judge Use Older Version of Sentencing Guidelines if It Helps the Defendant

Kish Law LLC

We do lots of sentencing hearings in federal criminal cases, here in Atlanta, throughout Georgia and other parts of the country, like Florida, Alabama, New York, California and Tennessee. Whatever state they are in, all federal judge are first required to consult the Federal Sentencing Guidelines when deciding the appropriate sentence for a person who has either pled guilty to or who a jury has found is guilty of a federal crime. These Guidelines are amended all the time, and it seems for some categories of crimes the suggested range of punishment keeps getting more and more harsh. However, what we lawyers call the “Ex Post Facto” clause from the Fifth Amendment to our beloved Constitution says that it is unconstitutional to increase punishments “after the fact.” Several days ago ( I was not able to get to this post as I have been in federal court all week) the United States Supreme Court held that the Ex Post Facto clause requires a new sentencing hearing for an Illinois businessman who had been convicted of bank fraud. The case is Peugh v. United States and can be accessed here.

Mr. Peugh was convicted of five counts of bank fraud in a scheme that caused more than $2.5 million in losses by the victim bank. The crimes took place around 1999 and 2000. However, when he went to court years later, the Sentencing Guidelines in effect at the time of his sentencing hearing suggested 70 to 87 months in prison. Peugh objected to use of the 2009 guidelines, insisting that the judge should use the guidelines in effect at the time of his crimes. Under those earlier Guidelines, the appropriate sentence ranged from 30 to 37 months in prison. Peugh argued that relying on higher guidelines enacted after his crimes were committed would amount to the use of an ex post facto law. The sentencing judge rejected the argument, and sentenced Peugh to 70 months in prison. A panel of the Seventh US Circuit Court of Appeals also rejected the ex post facto argument and upheld the sentence.

In reversing those decisions this past Monday, the Supreme Court said: “A retrospective increase in the Guidelines range applicable to a defendant creates a sufficient risk of a higher sentence to constitute an ex post facto violation.” Our new favorite Justice, Sonia Sotomayor, wrote the majority opinion in a 5-4 decision. She was joined by Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, and Elena Kagan.

The majority ruled that a federal judge’s reliance on the tougher guidelines in fashioning Mr. Peugh’s sentence violated the concept of “fundamental justice.” The ban on ex post facto laws is designed to promote basic fairness by preventing the government from changing the law midway through a criminal case when the new law will result in more severe punishment.

The main issue in this case was whether the ban on ex post facto laws should apply beyond statutes (laws enacted by Congress) to include any new, tougher version of the sentencing guidelines (which are created by this hybrid body called the United States Sentencing Commission). In deciding that the ex post facto clause does apply to the Sentencing Guidelines, Justice Sotomoyor wrote, “The Ex Post Facto Clause forbids the [government] to enhance the measure of punishment by altering the substantive ‘formula’ used to calculate the applicable sentencing range.”

“That is precisely what the amended guidelines did here,” she said. “Doing so created a ‘significant risk’ of a higher sentence for Peugh, and offended one of the principal interests that the Ex Post Facto Clause was designed to serve, fundamental justice.”

Justice Thomas wrote a dissent, joined by Chief Justice John Roberts and Justices Antonin Scalia and Samuel Alito. Justice Thomas said the sentencing guidelines may influence a judge’s sentencing decision but that the final sentence is discretionary. The Constitution bars ex post facto laws that increase punishment, not the enactment of discretionary guidelines that may result in a harsher sentence, he said.

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