Marvin Peugh was convicted of fraud for actions taken in 1999 and 2000. The 1998 Sentencing Guidelines recommended a 37- to 46-month sentence, while the 2009 Sentencing Guidelines recommended a 70- to 87-month sentence for Peugh’s conviction. After receiving a 70-month sentence under the 2009 Guidelines, Peugh asserts that using the 2009 Guidelines retroactively increased his punishment in violation of the Constitution’s Ex Post Facto Clause. The United States counters that the Sentencing Guidelines are merely advisory and that sentencing ultimately rests with a judge’s discretion, deferring to their knowledge of the case and their own penal philosophy. The Seventh Circuit Court of Appeals affirmed Peugh’s sentence; however, eight other courts of appeals would have directed the trial court to consult the 1998 Guidelines. This case is important to ensure consistent sentencing principles, even if particular sentences may vary. The notion that everyone should receive the same sentence for the same crime is a good theory, but other factors often cause a disparity in punishment.
The U.S. Sentencing Guidelines Manual directs a court to “use the Guidelines Manual in effect on the date that the defendant is sentenced” unless “the court determines that use of the Guidelines Manual in effect on the date that the defendant is sentenced would violate the Ex Post Facto Clause of the United States Constitution.” Eight courts of appeals have held that the Ex Post Facto Clause is violated where retroactive application of the Sentencing Guidelines creates a significant risk of a higher sentence. In the decision below, however, the Seventh Circuit has held that the Ex Post Facto Clause is never violated by retroactive application of the Sentencing Guidelines because the Guidelines are advisory, not mandatory. The question presented is:
Does a sentencing court violate the Ex Post Facto Clause by using the U.S. Sentencing Guidelines in effect at the time of sentencing rather than the Guidelines in effect at the time of the offense, if the newer Guidelines create a significant risk that the defendant will receive a longer sentence?
- Robert McSherry, Ex Post Facto Clause Takes Center Stage In Sentencing Case, Thomson Reuters: The Knowledge Effect (Dec. 4, 2012)
- Michael C. Dorf, The Centrality of the Ex Post Facto Clause, Dorf on Law (Oct. 24, 2010)
- Gregory L. Poe, The Ex Post Facto Clause and the Federal Sentencing Guidelines, Federal Criminal Practice Blog (Aug. 24, 2010)