Harsher sentencing guidelines violate Ex Post Facto Clause

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Sentencing a criminal defendant under later guidelines that provide for a higher sentence than those in effect at the time the crimes were committed violates the Ex Post Facto Clause, the U.S. Supreme Court has ruled in a 5-4 decision.

The defendant, Marvin Peugh, was convicted by a federal jury of five counts of bank fraud — including check kiting. He committed the crimes in 1999 and 2000, when his farm operation ran into financial trouble. At sentencing, the judge applied federal guidelines promulgated in 2009 and gave him the lowest of those guidelines, sentencing him to 70 months.

At oral arguments in February, Peugh’s attorney, Stephen B. Kinnaird, argued that his sentence was nearly two years longer than it would have been had he been sentenced under the guidelines in effect at the time of his crimes.

The Supreme Court said that violated the Ex Post Facto Clause of the Constitution.

According to Kinnaird, the U.S. Sentencing Commission routinely revises sentencing guidelines and recommends harsher sentencing for certain crimes, including fraud and sex crimes.

“Now, the Ex Post Facto Clause will apply and will require courts to use the guidelines in effect at the time of the offense,” said Kinnaird, a partner in the Washington office of Paul Hastings.

The court rejected the government’s argument that because the sentencing guidelines are advisory, they are not a “law” covered by the ex post facto prohibition.

“Even after the Sentencing Guidelines [were amended to become] advisory, district courts have in the vast majority of cases imposed either within-guidelines sentences or sentences that depart downward from the guidelines on the government’s motion. In less than one-fifth of cases since 2007 have district courts imposed above- or below-guidelines sentences absent a government motion. … The federal system adopts procedural measures intended to make the guidelines the lodestone of sentencing,” wrote Justice Sonia Sotomayor for the majority.

“Our ex post facto cases … have focused on whether a change in law creates a ‘significant risk’ of a higher sentence; here, whether a sentence in conformity with the new guidelines is substantially likely. … 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. 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,” the majority said.

Four dissenters complained that the guidelines had no legal effect on sentencing because they were discretionary and that any risk of a harsher punishment resulted merely from the guidelines’ persuasive, not binding, effect.