Major Ex Post Facto Decision by U.S. Supreme Court

The U.S. Supreme Court ruled in Peugh v. United States that a defendant may not be sentenced under guidelines issued after the crime was committed if those guidelines provide for a harsher sentence. This violates the U.S. Constitution’s prohibition on ex post facto laws, because the penalty has been increased for a particular crime after the crime was committed.

The crucial determination is whether a new law presents a “significant risk” of increasing the defendant’s punishment. The bottom line: A federal sentencing judge must apply the federal sentencing guidelines that were in effect when the offense was committed, unless the new version does not present a significant risk of increasing the sentence. The facts of Peugh are fairly straightforward:

  • The defendant committed bank fraud in 1999 to 2000.
  • By the time he was sentenced in 2009, the relevant guideline sentence range had greatly increased from 30 to 37 months’ imprisonment to 70 to 87 months.
  • However, in the years between the defendant’s criminal acts and his sentencing, the court declared that the guidelines were advisory, rather than mandatory.

This presented a dilemma for the 7th Circuit, which ruled that the advisory nature eliminated any ex post facto violation. Other circuits focused on the increased ranges, ruling that there was indeed an ex post facto violation, regardless of the “advisory” nature of the guidelines.

Writing for the 5-to-4 majority, Justice Sotomayor noted that even though the sentencing guidelines are advisory, the guidelines’ range does exert an influence, and district courts tend to follow the range. In another part of the opinion, Justice Sotomayor explains that the ex post facto clause is guided by principles of fairness and justice. However, Justice Kennedy did not join in with this part, making it dictum.

Interestingly, the majority opinion makes clear that the district court, on remand, may consider the new guidelines and the evolving public policy as a reason for deviating from the old guidelines.