Defendant’s Sentence Under Current Sentencing Guidelines Violates Ex Post Facto Clause When Criminal Acts Were Committed Before Current Structure and New Guidelines Provide Higher Sentencing Range.

Peugh v. United States, __ S. Ct.  __ (2013) Defendant convicted of 5 counts of bank fraud and sentenced in 2010 as a result of acts committed in 1998.  Under the 1998 Sentencing Guidelines, his sentence was 30-37 months and under 2009 Guidelines it was 70-87 months.  Defendant was sentenced to 70 months and he appealed arguing that under the Ex Post Facto Clause, he should be sentenced under the scheme in place at the time the acts were committed, not when sentenced. Ex Post Facto laws include any law that “chang[es] the punishment and inflic[ts] greater punishment, than the law annexed to the crime, when committed” Calder v. Bull, 3 Dall. 386, 390 (1798). The government argued that the Sentencing Guidelines do not count as “law” because they are advisory. The court disagreed and cited precedent such as Lindsey v. Washington that firmly establishes the principle that even nonbinding sentencing authority may violate the Ex Post Facto clause. Lindsey v. Washington, 301 U.S. 397 (1937)(Statutory increase from 0-15 years to mandatory sentence of 15 years violated Ex Post Facto even though upper boundary remained unchanged because defendant was deprived of opportunity to receive a lesser sentence.) Although the government presented a clever argument the court saw through it.  How do you think a sentencing judge would respond if you told her or him the sentencing guidelines are only advisory and s/he can let your client walk?

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