Courts Must Apply Sentencing Guidelines Effective When Crime Committed, Not When Sentenced – Peugh v. U.S.

June 10, 2013 by David S. Seltzer

A U.S. Supreme Court decision handed down today will have great benefits for people charged with serious crimes. In Peugh v. U.S., the Supreme Court ruled that courts must apply the U.S. Sentencing Guidelines in effect at the time the crime was committed, not the time of the sentencing. This matters because there can be a lengthy delay between the sentencing and the actual crime—and during that time, the Sentencing Guidelines may be substantially increased. The Constitution prohibits legislators from passing ex post facto laws, which include laws that increase the punishment for a crime beyond what it was when the crime was committed. In this case, Marvin Peugh successfully argued that the application of contemporary sentencing guidelines for decade-old crimes was an ex post facto violation.

Peugh and his cousin, Steve Hollewell, ran an Illinois agricultural business that ran into financial trouble in 1999 and 2000. They solved this problem, but committed crimes, by taking out a series of loans based on false contracts, then artificially increased their bank account balances with check kiting. When they were caught, Hollewell pleaded guilty to one count of check kiting, but Peugh pleaded not guilty, went to trial, and was convicted of five counts of bank fraud. At sentencing in 2009, Peugh argued for application of the 1998 Sentencing Guidelines, saying applying the 2009 version would violate the ex post facto clause. The sentencing range from the 1998 guidelines was 30-37 months; the range from the modern ones was 70 to 87 months. The district court disagreed and gave him 70 months. On appeal, the Seventh U.S. Circuit Court of Appeals adhered to its own precedent and upheld the sentence.

The U.S. Supreme Court reversed on a narrow 5-4 ruling. The case came to the nation’s highest court via a circuit split over whether applying newer Guidelines in such cases violates the ex post facto clause. The Guidelines themselves call for applying older Guidelines when the newer ones violate the clause. The government argued in this case that there is no ex post facto problem because, post-Booker, all Guidelines are merely advisory. The Supreme Court ultimately disagreed. Though the Guidelines are now advisory, it said, the system still steers district courts into within-Guidelines sentences. Thus, the court said, defendants are still on notice that they face longer sentences after a revision of the Guidelines. Furthermore, it found that precedent already establishes that sentencing changes need not be binding to violate the ex post facto clause. It reversed and remanded.

This case is a win for criminal defendants charged with any crime that was allegedly committed years before it was prosecuted. In this case, the charge was financial fraud that presumably took time to uncover, but a long wait might be likely in any case that takes a long time to be revealed, such as embezzlement or even some violent crimes. Though there’s no guarantee that the U.S. Sentencing Guidelines won’t call for less time in prison in the future, legislatures tend to add time rather than subtract it—especially when the crime is a high-profile one that turns into a political issue, as child molestation sometimes does. Criminal defense attorneys like me will now have a better chance to minimize our clients’ time in prison.

If you’re charged with any kind of crime in Florida, you need an experienced criminal defense attorney by your side. Call Seltzer Law, P.A., today for a free consultation. You can reach us 24 hours a day and seven days a week at 1-888-THE-DEFENSE (1-888-843-3333) or send us an email.

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