Criminal Procedure — Ex Post Facto clause

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U.S. Court of Appeals for the 7th Circuit

Criminal

Criminal Procedure — Ex Post Facto clause

Where the defendant was sentenced based on guidelines in effect at the time of sentencing, rather than at the time of the crime, the sentence must be vacated.

“The government opposed Mockabee’s ex post facto argument in its brief and at sentencing, relying on our decision in United States v. Demaree, 459 F.3d 791, 795–96 (7th Cir. 2006), in which we held that applying the version of the guidelines in effect at the time of sentencing does not violate the Ex Post Facto Clause, even if that version took effect after the defendant committed the offense and even if the version increased the sentencing range. Since then the Supreme Court decided Peugh v. United States, 133 S. Ct. 2072 (2012), overruling Demaree and holding that the Ex Post Facto Clause is violated ‘when a defendant is sentenced under Guidelines promulgated after he committed his criminal acts and the new version provides a higher applicable Guidelines sentencing range than the version in place at the time of the offense.’ Id. at 2078. Because Mockabee was sentenced under a more recent version of the sentencing guidelines, which provides for a higher guideline range than the guidelines in effect at the time of his offense, he must be resentenced.”

Affirmed in part, and Vacated in part.

11-2267, 11-2288, 11-2535 & 11-2687 U.S. v. Jones

Appeals from the United States District Court for the Southern District of Indiana, Barker, J., Tinder, J.