High court hears ex post facto sentencing case

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At oral arguments Tuesday, the justices of the U.S. Supreme Court questioned whether a sentence imposed according to the U.S. Sentencing Guidelines in place at the time of sentencing, which was harsher than the sentence that would have been imposed under guidelines at the time of the crime, violated the Constitution’s Ex Post Facto Clause.

The case, Peugh v. U.S., involves the conviction of Marvin Peugh on five counts of bank fraud. He objected to his resulting 70-month sentence, imposed pursuant to federal sentencing guidelines in place at the time of sentencing, arguing that it was 20 months longer than a sentence under the guidelines in place at the time of the crime would have been, and therefore violated the ex post facto clause.

The 7th U.S. Circuit Court of Appeals disagreed, finding that the advisory nature of the newer guidelines vitiates any ex post facto problem. The U.S. Supreme Court granted certiorari.

At oral arguments, Stephen B. Kinnaird, a partner in the Washington office of Paul Hastings, argued on the defendant’s behalf that “retroactive application of harsher guidelines passed after the offense violates the Ex Post Facto Clause.”

Justice Antonin G. Scalia pointed out that the newer guidelines are advisory.

“It’s not a change of the law if the law does not require the guidelines to be imposed,” Scalia said.

Kinnaird said the constitutional clause is violated where “there’s a sufficient risk of increasing the penalty,” as there is under the longer guidelines.

Eric J. Feigin, assistant to the Solicitor General, argued on the government’s behalf that, for an ex post facto violation to occur, the law in question must affect “the legal consequences of a prior act.”

“A guidelines amendment doesn’t do that,” Feigin said.

He said that the change in the guidelines was designed to give judges more flexibility. But Scalia asked whether it could be retroactivity in disguise.

“The Sentencing Commission can make a revision of the guidelines retroactive [but] only do that for revisions that lower the suggested penalty,” Scalia said, “because if it could increase it, then it would be violating, according to your [opponent], the Ex Post Facto Clause.”

A decision is expected later this term.