Supreme Court: Retroactive Application Of Guidelines Enhancement Violates Ex Post Facto Clause

Federal judges may not apply sentencing guidelines that were enhanced after the defendant committed his crime, the Supreme Court ruled Monday.

The Court’s 5-4 decision in Peugh v. United States that retroactive guidelines application violates the ex post facto clause of the U.S. Constitution is a major win for federal criminal defendants and will likely have a significant impact on sentencing for a variety of crimes.  

Though the guidelines have been advisory since 2005, a court must correctly calculate the guidelines as part of the sentencing process.  Some defendants sentenced under enhanced guidelines will have the opportunity to be resentenced. 

The defendant in Peugh was convicted of five counts of bank fraud based on crimes committed in 1999 and 2000.  If he had been sentenced under the guidelines in effect at the time of his crime, his guidelines imprisonment term would have been 30 to 37 months.  But by the time he was sentenced in May 2010, his guideline had more than doubled, to 70 to 87 months.  

As directed by Congress, the district court used the enhanced guideline.  Both the district court and the Seventh Circuit rejected Peugh’s argument that applying the new guideline violated the ex post facto clause. 

The Supreme Court reversed.  The government argued that the fact that the guidelines are no longer mandatory removed the opportunity for any potential ex post facto violation.  But the Court disagreed.

“That a district court may ultimately sentence a given defendant outside the Guidelines range does not deprive the Guidelines of force as the framework for sentencing,” Justice Sonia Sotomayor wrote for the majority.

Given the Sentencing Commission’s history of increasing guidelines for many crimes, including fraud-related offenses, Peugh likely will have an immediate impact on federal sentencing.